Fees for Governance, Oversight, and Processing of Environmental Reviews and Authorizations by the Federal Permitting Improvement Steering Council, 44846-44856 [2018-19032]
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44846
Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules
AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR
39.19, send your request to your principal
inspector or local Flight Standards District
Office, as appropriate. If sending information
directly to the International Section, send it
to the attention of the person identified in
paragraph (i)(2) of this AD. Information may
be emailed to: 9-ANM-116-AMOCREQUESTS@faa.gov. Before using any
approved AMOC, notify your appropriate
principal inspector, or lacking a principal
inspector, the manager of the local flight
standards district office/certificate holding
district office.
(2) Contacting the Manufacturer: For any
requirement in this AD to obtain corrective
actions from a manufacturer, the action must
be accomplished using a method approved
by the Manager, International Section,
Transport Standards Branch, FAA; or the
European Aviation Safety Agency (EASA); or
Airbus SAS’s EASA Design Organization
Approval (DOA). If approved by the DOA,
the approval must include the DOAauthorized signature.
(3) Required for Compliance (RC): If any
service information contains procedures or
tests that are identified as RC, those
procedures and tests must be done to comply
with this AD; any procedures or tests that are
not identified as RC are recommended. Those
procedures and tests that are not identified
as RC may be deviated from using accepted
methods in accordance with the operator’s
maintenance or inspection program without
obtaining approval of an AMOC, provided
the procedures and tests identified as RC can
be done and the airplane can be put back in
an airworthy condition. Any substitutions or
changes to procedures or tests identified as
RC require approval of an AMOC.
sradovich on DSK3GMQ082PROD with PROPOSALS
(i) Related Information
(1) Refer to Mandatory Continuing
Airworthiness Information (MCAI) EASA AD
2018–0108, dated May 15, 2018, for related
information. This MCAI may be found in the
AD docket on the internet at https://
www.regulations.gov by searching for and
locating Docket No. FAA–2018–0761.
(2) For more information about this AD,
contact Kathleen Arrigotti, Aerospace
Engineer, International Section, Transport
Standards Branch, FAA, 2200 South 216th
St., Des Moines, WA 98198; telephone and
fax 206–231–3218.
(3) For service information identified in
this AD, contact Airbus SAS, Airworthiness
Office—EAL, Rond-Point Emile Dewoitine
No: 2, 31700 Blagnac Cedex, France;
telephone +33 5 61 93 36 96; fax +33 5 61
93 45 80; email continuedairworthiness.a350@airbus.com; internet
https://www.airbus.com. You may view this
service information at the FAA, Transport
Standards Branch, 2200 South 216th St., Des
Moines, WA. For information on the
availability of this material at the FAA, call
206–231–3195.
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Issued in Des Moines, Washington, on
August 17, 2018.
Michael Kaszycki,
Acting Director, System Oversight Division,
Aircraft Certification Service.
[FR Doc. 2018–18993 Filed 8–31–18; 8:45 am]
BILLING CODE 4910–13–P
FEDERAL PERMITTING
IMPROVEMENT STEERING COUNCIL
40 CFR Chapter IX
[FPISC Case 2018–001; Docket No. 2018–
0008; Sequence No. 1]
RIN 3090–AJ88
Fees for Governance, Oversight, and
Processing of Environmental Reviews
and Authorizations by the Federal
Permitting Improvement Steering
Council
Federal Permitting
Improvement Steering Council.
ACTION: Notice of proposed rulemaking.
AGENCY:
This notice of proposed
rulemaking proposes to establish an
initiation fee for project sponsors to
reimburse the Federal Permitting
Improvement Steering Council—Office
of the Executive Director (FPISC–OED)
for reasonable costs to implement
certain requirements and authorities
required under Title 41 of the Fixing
America’s Surface Transportation Act
(FAST–41) and costs of operating
FPISC–OED. FAST–41 creates a new
authority to establish a fee structure to
reimburse reasonable costs incurred in
implementing certain requirements and
authorities including the costs to
agencies and the costs of operating the
Permitting Council. In this rulemaking,
we propose an initiation fee that would
cover only reasonable costs for FPISC–
OED’s operations and costs to provide
oversight and support to implement
FAST–41. We seek comments on all
aspects of the proposed rulemaking.
DATES: We will accept comments, data,
and information regarding this proposed
rule no later than November 5, 2018.
ADDRESSES: Submit comments in
response to FPISC Case 2018–001 by
any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
entering ‘‘FPISC Case 2018–001’’, under
the heading ‘‘Enter Keyword or ID’’ and
select ‘‘Search’’. Select the link ‘‘Submit
a Comment’’ that corresponds with
‘‘FPISC Case 2018–001’’ and follow the
instructions provided at the ‘‘Comment
Now’’ screen. Please include your name,
company name (if any), and ‘‘FPISC
SUMMARY:
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Case 2018–001’’ on your attached
document.
• Mail: FPISC–OED, c/o General
Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Lois
Mandell, 1800 F Street NW,
Washington, DC 20405.
Instructions: Please submit comments
only and cite FPISC Case 2018–001 in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. To confirm
receipt of your comment(s), please
check www.regulations.gov
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT:
Amber Levofsky, Federal Permitting
Improvement Steering Council—Office
of the Executive Director, 1800 F Street
NW, Washington, DC 20504; telephone
number: 202–412–2064; email address:
amber.levofsky@fpisc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
II. Authority
III. Discussion
A. Proposed Regulations
i. § 1900.1 Purpose and Scope
ii. § 1900.2 Definitions
iii. § 1900.3 FAST–41 Initiation Fee
B. Economic Impacts
i. Benefits of the Initiation Fee to Project
Sponsors of Covered Projects
ii. Costs of the Initiation Fee to Project
Sponsors of Covered Projects
iii. Determination of Amount of Initiation
Fee
C. Issues on Which We Seek Comment
i. Initiation Fee Non-Refundable and Due
in Two Parts
ii. Calculation of Initiation Fee
iii. Exclusions
D. Public Participation
E. Docket
IV. Regulatory Review
A. Executive Order 12866
i. Scope and Key Inputs to the Analysis
ii. Costs
iii. Benefits
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
H. National Environmental Policy Act
I. Executive Order 13771: Reducing
Regulation and Controlling Regulatory
Costs
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Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules
I. Background
Title 41 of the Fixing America’s
Surface Transportation Act (Pub. L.
114–94, secs. 41001 et seq. (Dec. 4,
2015) (codified at 42 U.S.C. 4370m et
seq.)) (FAST–41) seeks to encourage
greater coordination across the Federal
Government in environmental reviews
and authorizations for large, complex
infrastructure projects. To oversee its
implementation, FAST–41 created the
Federal Permitting Improvement
Steering Council (FPISC or Permitting
Council), which is chaired by an
Executive Director appointed by the
President and consists of Deputy
Secretary-level members from 14
Federal agencies, the Council on
Environmental Quality (CEQ), and the
Office of Management and Budget
(OMB) (42 U.S.C. 4370m–1). The 14
Federal agencies include 13 agencies
designated in FAST–41 as enacted (42
U.S.C. 4370m–1(b)(2)(B)), as well as the
General Services Administration (GSA),
which was invited to join the Permitting
Council by the Executive Director
pursuant to 42 U.S.C. 4370m–
1(b)(2)(B)(xiv) on May 2, 2017. In
addition, GSA was designated by the
OMB Director to provide administrative
support for the Executive Director and,
as reasonably necessary, provide
support and staff to enable the
Executive Director to fulfill the duties of
the position, effective March 1, 2016 (42
U.S.C. 4370m–1(d)). GSA’s membership
in the Permitting Council and its role in
providing administrative support to the
Permitting Council establish the basis
for GSA to assist the FPISC with this
proposal (The term ‘‘we’’ as used in this
document refers to the Permitting
Council).
To become a new covered project
under FAST–41, the project sponsor
must submit a complete FAST–41
initiation notice (FIN) and send it to the
facilitating agency, as designated in the
OMB and CEQ Guidance to Federal
Agencies Regarding the Environmental
Review and Authorization Process for
Infrastructure Projects (FAST–41
Implementation Guidance, published
January 13, 2017) at https://
www.permits.performance.gov/tools/
fast-41-implementation-guidance, and
the Executive Director. However, project
sponsors have the option to engage and
consult with potential lead,
participating, and cooperating agencies
(as defined in 42 U.S.C. 4370m) early in
the project lifecycle, before they submit
a FIN. FPISC–OED facilitates many of
these consultations and discusses with
the project sponsor the various
considerations that project sponsors
may take into account when
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determining whether and when to
submit a FIN. For example, FPISC–OED
will ensure the project sponsor knows
who the facilitating agency would be for
the project, the best approach in moving
forward if there is a formalized preapplication process already in place,
and an understanding of eligibility
under FAST–41. For additional
information on the requirements for a
project to become covered under FAST–
41 and the coordination recommended
for project sponsors interested in
submitting a FIN, see the FAST–41
Implementation Guidance.
If a FIN is approved and the project
becomes a covered project under FAST–
41, FPISC–OED supports the relevant
Federal agencies and project sponsor
during the Federal environmental
review and authorization process. This
support can include managing the
integrity and content of data on the
publicly-available Permitting Dashboard
regarding schedules for the specific
permits during the permitting process,
verifying the accuracy of the data on a
routine basis, assessing and determining
the viability of modifications to
schedules after they are posted on the
Permitting Dashboard, and handling
disputes between Federal agencies or
between a project sponsor and a Federal
agency related to the schedules (42
U.S.C. 4370m–2(c)(2)). In addition,
FPISC–OED facilitates regularly
scheduled Permitting Council meetings,
consultations with the Department of
Transportation (DOT) on Permitting
Dashboard management, and meetings
with project sponsors regarding project
status and any updates related to agency
coordination.
The duties of the Executive Director
include, but are not limited to:
• Developing, in consultation with
the Permitting Council, ‘‘recommended
performance schedules, including
intermediate and final completion dates,
for environmental reviews and
authorizations most commonly required
for each category of covered projects’’
(42 U.S.C. 4370m–1(c)(1)(C));
• Recommending, in consultation
with the Permitting Council, to the
Director of OMB or to CEQ, guidance for
agencies to carry out the responsibilities
of FAST–41(42 U.S.C. 4370m–
1(c)(1)(D));
• Coordinating with the Permitting
Council to issue yearly
recommendations on best practices for
the categories outlined in 42 U.S.C.
4370m–1(c)(2)(B);
• Coordinating with the Permitting
Council to meet annually with groups or
individuals representing State, tribal,
and local governments that are engaged
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in the infrastructure permitting process
(42 U.S.C. 4370m–1(c)(2)(C));
• Reviewing and approving any
modifications of more than 30 days to
the permitting schedule of covered
projects to prevent undue delays and
ensure a realistic and concurred-upon
schedule has been developed, upon
which all parties will act moving
forward (42 U.S.C. 4370m–
2(c)(2)(D)(i)(III)); and
• Mediating disputes between project
sponsors and relevant agencies related
to the permitting timetable. If no
conclusions are made after a total of 60
days, the Office of Management and
Budget will make a final decision (42
U.S.C. 4370m–2(c)(2)(C).
This document proposes to establish a
required initiation fee for project
sponsors to reimburse FPISC–OED for
reasonable costs to implement the
requirements and authorities mentioned
above under FAST–41 and costs of
operating FPISC–OED. The fee is
necessary because as an oversight
council, FPISC–OED is responsible for
implementing the provisions of FAST–
41 by facilitating and institutionalizing
the transparency, accountability, and
coordination among Federal agencies
related to the Federal environmental
review and authorization process. The
fee allows FPISC–OED to carry out its
obligations to improve the infrastructure
permitting process.
II. Authority
Pursuant to 42 U.S.C. 4370m–8(a), the
heads of Permitting Council agencies,
with the guidance of the Director of
OMB and in consultation with the
Executive Director, may issue
regulations establishing a fee structure
to recover, from project sponsors,
reasonable costs incurred in conducting
environmental reviews and
authorizations for infrastructure projects
covered by FAST–41. Reasonable costs
include costs to implement the
requirements and authorities of 42
U.S.C. 4370m–1 and 4370m–2,
including (1) the costs to agencies and
(2) the costs of operating the Council (42
U.S.C. 4370m–8(b)), which includes
FPISC–OED.
III. Discussion
A. Proposed Regulations
i. § 1900.1 Purpose and Scope
FAST–41 established a new
governance structure, set of procedures,
and authorities to improve the
timeliness, predictability, and
transparency of the Federal
environmental review and authorization
process for covered infrastructure
projects. Section 1900.1 of this proposed
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regulation would restate the statutory
requirement and introduce the purpose
of the proposed requirements. Section
1900.1 also would set the rule’s effective
date (i.e., the date on which project
sponsors would have to comply with
the rule).
We propose the effective date to be
one day following publication of a final
rule because we estimate that project
sponsors will take only 2.5 hours to
familiarize themselves with the rule,
complete the FIN, and ensure that their
accounting system(s) can transfer the
appropriate initiation fee with the FIN.
FAST–41 was signed into law in
December 2015; since then, seven
projects have submitted FINs and gone
through the process of becoming
covered projects. We request comment
on the effective date of the proposed
rule and whether the proposed effective
date would provide project sponsors
sufficient time to adequately comply
with the regulations.
sradovich on DSK3GMQ082PROD with PROPOSALS
ii. § 1900.2
Definitions
Section 1900.2 would define key
terms used throughout the proposed
regulations, many of which were
derived from FAST–41, with
modifications where further
clarification was needed. We propose to
adopt the same definition of the
following terms as they are defined in
42 U.S.C. 4370m: ‘‘Agency,’’ ‘‘Covered
project,’’ ‘‘Executive Director,’’
‘‘Facilitating agency,’’ ‘‘Lead agency,’’
‘‘NEPA,’’ and ‘‘Project sponsor.’’ In
addition, we propose to add the
following terms that have not been
defined in FAST–41 to provide clarity
for the regulations:
(a) Business day. We propose that the
term ‘‘business day’’ means Monday
through Friday and excludes Federal
legal holidays.
(b) Environmental Review
Improvement Fund. We propose that the
term ‘‘Environmental Review
Improvement Fund’’ refers to the fund
described in 42 U.S.C. 4370m–8(d)
which must be established in the
Treasury of the United States to deposit
any fees collected. The amounts
available in the Environmental Review
and Improvement Fund shall be
available to the Executive Director,
without appropriation or fiscal year
limitation, solely for the purposes of
administering, implementing, and
enforcing FAST–41, including the
expenses of the Council;
(c) FAST–41. We propose to define
the term ‘‘FAST–41’’ to mean Title 41 of
the Fixing America’s Surface
Transportation Act (Pub. L. 114–94,
41001 et seq. (Dec. 4, 2015) (codified at
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42 U.S.C. 4370m et seq.)) which is the
basis for this proposed regulation;
(d) FAST–41 initiation notice (FIN).
We propose to define the term ‘‘FAST–
41 initiation notice,’’ which is not
defined in Title 42 of the United States
Code, as a FAST–41 initiation notice of
a proposed covered project that a project
sponsor submits to FPISC–OED and the
facilitating agency;
(e) FPISC–OED. We propose to define
the term ‘‘FPISC–OED,’’ which is not
defined in Title 42 of the United States
Code, as the Federal Permitting
Improvement Steering Council-Office of
Executive Director that supports the
Federal Permitting Improvement
Steering Council in implementing the
provisions of FAST–41;
(f) Indian tribe. We propose to define
the term ‘‘Indian tribe,’’ which is not
defined in Title 42 of the United States
Code, as any Indian tribe, band, nation,
or other organized group or community,
including any Alaskan Native village or
regional or village corporation as
defined in or established pursuant to the
Alaska Native Claims Settlement Act (43
U.S.C. 1601 et seq.), that is recognized
as eligible for the special programs and
services provided by the United States
to Indians because of their status as
Indians.
(g) Initiation Fee. We propose to
define the term ‘‘initiation fee,’’ which
is not defined in Title 42 of the United
States Code, as a non-refundable
payment submitted by a project sponsor.
The proposed rule provides more detail
on the initiation fee amount and how it
will be assessed.
iii. § 1900.3 FAST–41 Initiation Fee
In proposed section 1900.3(a), we
propose an initiation fee of $200,000 per
FIN submitted for each project by a
project sponsor of a proposed covered
project. An explanation of how this
amount was determined is discussed in
section B.iii of this proposed rule. The
initiation fee would be due in two
parts—$5,000 would be due at the time
the project sponsor submits the FIN and
$195,000 would be due within 10
business days of a determination that
the project is a covered project for
purposes of FAST–41. The $5,000 nonrefundable portion was determined
through analysis of FPISC–OED’s costs
incurred on pre-coordination with
project sponsors, pre-coordination with
lead and cooperating agencies, and FIN
review. If the project is determined not
to be a covered project, the $5,000
portion of the initiation fee would not
be refunded and the $195,000 would not
be assessed. We determined that 10
business days was an appropriate
balance of providing sponsors with
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sufficient time to prepare the necessary
funds and wanting to start providing
FPISC–OED services as soon as possible.
That being said, we solicit public
comment on whether we should
consider a different period of time.
In the future, we may need to adjust
the amount of the initiation fee based on
changes to program costs and the
number of new FINs received. Section
1900.3(b) sets out the mechanism by
which the Permitting Council would be
able to change the fee. The fee being set
in this regulation is based, in part, on
the fact that in fiscal year (FY) 2017
FPISC–OED supported 35 covered
projects. In the next few years, FPISC–
OED anticipates additional projects
becoming covered at the beginning of or
in the early stages of project
implementation. As a result, more
coordination may be necessary between
FPISC–OED, the Permitting Council
agencies, and project sponsors. In
addition, FPISC–OED’s costs are
anticipated to increase based on the
number of projects that are accepted as
covered projects as a greater number of
projects will require additional staff for
support. If necessary, FPISC–OED
would adjust the fee by developing an
average hourly rate for government staff
using the number of full time employees
multiplied by the salary of each
employee (based on the General
Schedule classification and pay system),
which also includes overhead and
operational costs. For contractor support
costs, FPISC–OED would use total
contract costs divided by full time
employees to develop an average hourly
rate that also includes salary, overhead,
and operational costs. A change in the
initiation fee would not change the nonrefundable portion of the fee, only the
portion due at the time the project was
determined to be a covered project
under FAST–41. The regulation would
require FPISC to publish the new
amount of the initiation fee in the
Federal Register before it can take
effect. We seek comment on the
methodology for calculating the new
initiation fee and whether changes to
the initiation fee should be made
through notification in the Federal
Register or whether we should take
comment before a revised initiation fee
takes effect.
In proposed section 1900.3(c), any
Indian tribe proposing covered projects
on trust property are exempted from
paying the initiation fee. This is
consistent with the trust relationship as
well as the government-to-government
relationship between the Federal
Government and federally-recognized
Indian tribes, and will enable FPISC–
OED to provide services, without
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additional cost to tribal governments, in
order to protect trust assets held for the
benefit of Indian tribes.
In addition to Indian tribes, the fee
structure allows the Permitting Council
to exempt other parties for which the fee
would impose an undue financial
burden or is otherwise determined to be
inappropriate. Therefore, on a case-bycase basis, FPISC–OED would grant
exemptions, in whole or in part, to
project sponsors demonstrating that the
fee would impose undue financial
burden or was otherwise inappropriate.
A petition for an exemption would
require sufficient supporting evidence
to demonstrate that the fee would be
economically burdensome or
inappropriate. FPISC–OED would
consider the following factors in making
an exemption determination:
(a) The nature and cost of the
infrastructure project;
(b) The financial impact of the fee on
the project sponsor;
(c) The financial resources of the
project sponsor; and
(d) The type of operations of the
project sponsor.
In proposed section 1900.3(d), the
Executive Director would review a
project sponsor’s petition for an
exemption and based on the factors
listed above and would either approve
or deny the petition for exemption. We
are proposing the Executive Director
have 30 days to review the petition for
exemption and make a written
determination. Once a determination is
made, the Executive Director will
transmit the written determination,
including a statement of reasons, to the
project sponsor. This proposal solicits
public comment on the specific
exemptions it is proposing and on the
conditions by which it would review
such exemptions.
In proposed section 1900.3(e), as
allowed by FAST–41, the initiation fee
would be used by FPISC–OED to cover
its costs in implementing the
requirements and authorities of 42
U.S.C. 4370m–1 and 4370m–2 and the
operational costs of FPISC–OED (42
U.S.C. 4370m–8(a)). For example,
activities undertaken by FPISC–OED
that may be covered by the initiation fee
could include, without being limited to,
pre-coordination with project sponsors;
pre-coordination with lead and
cooperating agencies; FIN review;
maintenance and enhancements of the
Permitting Dashboard including
operations, security, and the
development and provision of training;
outreach to stakeholders through
conferences and meetings; producing
handouts, flyers, and information
materials for project sponsors related to
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FAST–41; developing recommended
performance schedules including
intermediate and final completion dates
for environmental reviews and
authorizations; assisting with
development of coordinated project
plans (CPPs); reviewing and approving
any modifications of more than 30 days
to the permitting schedule of covered
projects; mediating disputes between
projects sponsors and relevant agencies
related to the permitting timetable;
assessing Permitting Council agency
updates to the CPPs and Permitting
Dashboard; tracking compliance with
permitting timetable dates; writing
reports and implementation guidance;
writing standard operating procedures;
and conducting Permitting Council,
Chief Environmental Review and
Permitting Officer (CERPO), and
Permitting Council Working Group
meetings. The initiation fee would also
cover FPISC–OED’s costs of operations
including, but not limited to, staffing
and personnel, office space and
equipment, and program support
contracts. The proposed initiation fee
would have no impact on fee
requirements of other Federal agencies
under their existing processes and is not
intended to be allotted to Permitting
Council agencies to facilitate their
reviews and/or participation in the
FAST–41 process.
In proposed section 1900.3(f), we
would ensure that all initiation fees
collected were deposited into the
Environmental Review and
Improvement Fund as required by
FAST–41 (42 U.S.C. 4370m–8(d)(1)).
Amounts collected under the initiation
fee final rule would be available to the
Permitting Council Executive Director,
without appropriation or fiscal year
limitation, for the purpose of
administering FAST–41 and operating
the FPISC–OED (42 U.S.C. 4370m–
8(d)(2)). The use of funds accepted
under this fee structure shall not impact
impartial decision-making with respect
to environmental reviews or
authorizations, either substantively or
procedurally, because FPISC–OED does
not have any authority in the decisionmaking with respect to environmental
reviews and authorizations (42 U.S.C.
4370m–8(e)). FPISC–OED ensures
enhanced coordination, visibility,
predictability, and accountability in the
environmental review and authorization
process. The outcome of the
environmental review and authorization
process remains with the lead,
cooperating, and participating agencies,
as applicable, that conduct and issue
environmental reviews and
authorizations.
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B. Economic Impacts
i. Benefits of the Initiation Fee to Project
Sponsors of Covered Projects
In considering the potential impacts
of the proposed rule, we anticipate that
there will be no change in potential
benefits associated with this rule.
Benefits are not quantified in this
analysis. However, the proposed rule is
associated with benefits in that it allows
for the continuation of the FPISC–OED’s
services. An initiation fee is necessary
because as an oversight council, FPISC–
OED is responsible for implementing
the provisions of FAST–41 by
facilitating and institutionalizing the
transparency, accountability, and
coordination among Federal agencies
related to the Federal environmental
review and authorization process. The
fee allows FPISC–OED to carry out its
obligations to improve the infrastructure
permitting process. Specifically, an
initiation fee would allow FPISC to
continue to produce the following
benefits for projects covered under
FAST–41:
• Enhanced coordination: When a
proposed project becomes a covered
project under FAST–41, the lead or
facilitating agency, as applicable, must
identify all agencies and governmental
entities likely to have financing,
environmental reviews, authorizations,
or other responsibilities with respect to
the covered project, and invite all
Federal agencies to become
participating or cooperating agencies (42
U.S.C. 4370m–2(a)(2)(A)(ii)). The lead or
facilitating agency, as applicable, in
consultation with each coordinating and
participating agency, shall establish a
project-specific CPP for coordinating
public and agency participation in, and
completion of, any required Federal
environmental review and authorization
for the project (42 U.S.C. 4370m–
2(c)(1)(A)). Advanced coordination has
been known to help improve the
efficiency of reviews by allowing early
communication of project goals and
discussion of potential alternatives with
permitting agencies and stakeholders
which can lead to environmental
reviews and authorizations being
completed earlier by identifying and
addressing potential causes of delay
earlier in the process.
• Enhanced visibility and
predictability: The lead agency, within a
CPP, will develop a permitting timetable
for each covered project, which
establishes scheduled dates for all
required Federal environmental reviews
and authorizations (as well as for State
permits and environmental reviews
when the State elects to participate in
the FAST–41 process) based on project-
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specific factors, statutory and regulatory
requirements, and historical timeframes
for the activities. Scheduled and actual
timeframes for government processes
will be publicly displayed and tracked
on the online Permitting Dashboard. If
an environmental review or
authorization is delayed, the lead,
cooperating, or participating agency is
required to update the schedule at least
30 days before the currently reported
completion date and the agency will not
be allowed to extend the final
completion date by more than 30 days
without consulting with the project
sponsor. The enhanced visibility and
predictability leads to greater
accountability by Federal agencies. As
discussed in the FAST–41
Implementation Guidance,
environmental review and authorization
schedules for independent regulatory
commissions are not subject to review
and oversight by project sponsors or
other government offices.
• Enhanced accountability: Covered
projects benefit from high-level
oversight on the permitting process from
the Executive Director to ensure that
Federal agencies follow FAST–41
processes and adhere to established
timeframes. If the lead, participating, or
cooperating agencies delay the
permitting process by more than 150
percent of the original schedule, it must
be reported to Congress (42 U.S.C.
4370m–2(c)(2)(D)(iii)).
• Enhanced public participation:
Specific timeframes have been
developed for certain public
participation activities, including early
coordination for collection of key
concerns, public involvement in the
development of reasonable alternatives,
and public comment periods on draft
Environmental Impact Statements
(EISs). For example, the lead agency
must establish a comment period for
draft EISs to be between 45 days and 60
days unless the lead agency, project
sponsor, and any cooperating agency
agree to a longer deadline or the lead
agency, in consultation with each
cooperating agency, extends the
deadline for good cause (42 U.S.C.
4370m–4(d)(1)).
• Enhanced legal protections: The
statute of limitations to challenge any
Federal authorizations for covered
projects is reduced from 6 years to 2
years from the date the authorization is
issued by the agency, and future claims
pertaining to a Federal environmental
review may be brought only if the
commenter filed a sufficiently detailed
comment and put the lead agency on
notice of the issue during the
environmental review process. Persons
who did not submit comments on the
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environmental review would not have
any standing to challenge the
authorization for a covered project (42
U.S.C. 4370m–6(a)).
ii. Costs of the Initiation Fee to Project
Sponsors of Covered Projects
We evaluated potential costs and
transfer provisions associated with this
rulemaking. Cost provisions include
consideration of time associated with
rule familiarization for stakeholders and
time required to complete the FIN. We
concluded that the proposed rule would
result in a 10-year total cost of $20,637
undiscounted, $18,290 discounted at 3
percent, and $15,847 discounted at 7
percent. The transfer provision accounts
for the non-refundable portion of the
initiation fee for all FINs as well as the
additional fee required from successful
project sponsors. We determined that
over a 10-year period, the proposed rule
would transfer funds from project
sponsors to FPISC totaling $78,692,000
undiscounted, $67,963,353 discounted
at 3 percent, and $56,794,754
discounted at 7 percent. The costs of the
fee are described in greater detail in
section IV.A.ii below.
iii. Determination of Amount of
Initiation Fee
The initiation fee amount was
determined based on an analysis of
current and projected FPISC–OED
expenditures, a review of the existing
portfolio of covered projects, and
estimates of the number of new covered
projects that will be added in future
years. In FY 2017, FPISC–OED had
expenditures of approximately $4.75
million and supported 35 projects on
the Permitting Dashboard. Of those 35
covered projects, 25 were still in
progress while 10 were listed as
‘‘Complete’’ at the end of FY 2017.
Based on this data, we estimate the FY
2017 cost per FAST–41 covered project
was approximately $190,000 ($4.75M/
25 covered projects still in progress).
It is important to note that most of the
initial set of 35 covered projects were
existing projects that were already far
along in the environmental review and
authorization process when FAST–41
was enacted. As new projects are added,
we anticipate additional support and
coordination will be needed for newly
designated covered projects that are in
the early stages of development or the
environmental review and authorization
process. This enhanced level of support
includes early coordination and
stakeholder outreach, assisting in the
development of CPPs and permitting
timetables for the entire permitting
process, consulting and facilitating
throughout the Federal environmental
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Sfmt 4702
review and authorization process, and
monitoring and assessing Federal
agency performance in meeting Federal
permitting timetable goals. We
estimated that the proposed $200,000
initiation fee per project for project
sponsors is sufficient for FPISC–OED to
fully carry out its responsibilities under
FAST–41, including the additional level
of support and coordination needed for
newly designated covered projects.
At the beginning of FY 2018, FPISC–
OED was overseeing 37 covered
projects. Based on estimates of the
number of projects that would be
completed each year and the number of
new covered projects each year, we
estimate that FPISC–OED will support
24 new covered projects in FY 2019; 26
new covered projects in FY 2020; 33
new covered projects in FY 2021; 41
new covered projects in FY 2022; and
48 new covered projects each year in FY
2023–2028. Therefore, the annual fee
collected would range from $4.80
million in FY 2019 to $9.60 million by
FY 2023. This estimate comes from the
anticipated increase in visibility of the
program from projects successfully
going through the FAST–41 process. In
addition, we anticipate that by FY 2023
the number of new projects will stay
steady at 48 new projects a year because
there are a limited number of projects in
the country that would be eligible to be
covered under FAST–41. Furthermore,
FPISC–OED anticipates not all eligible
projects will apply to become covered
projects.
The analysis assumes a 5 percent
charge to provide a reserve fund for the
program. OMB established Circular A–
25 (User Charges), which promulgated
Federal policy regarding the selfsufficiency of all projects.1 A central
goal of OMB Circular A–25 guidelines is
to efficiently allocate government
resources by at least fully recouping all
costs associated with providing the good
or service. OMB Circular A–25
guidelines state that all recipients of
special benefits from Federal activities
will be assessed a fee for services
beyond those received by the general
public. If existing laws restrict such a
fee, agencies will review activities
periodically and recommend legislative
changes as appropriate. User fees will be
collected in advance or at the time of
the provision of service. When possible,
agencies should set charges as rates
rather than fixed amounts. Both direct
and indirect costs will be included in
1 The guidelines were issued under the authority
granted by Title V of the Independent Offices
Appropriations Act of 1952 (31 U.S.C. 1111) and
Executive Orders No. 8248 and 11541. Available at
https://www.whitehouse.gov/wp-content/uploads/
2017/11/Circular-025.pdf.
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the calculation of total costs, including
salaries and fringe benefits, travel,
general overhead, consulting fees, and
insurance, among other cost elements.
Public demand for such services
varies from year to year. This variation
creates challenges because agencies seek
to recover the costs of managing
programs and the associated services
provided to recipients. For this reason,
many agencies maintain reserve funds
to ensure that sufficient agency funding
is available for the continued operation
of the agency. In Federal User Fees: A
Design Guide, the Government
Accountability Office (GAO)
recommended that maintaining reserve
funds can help hedge against sudden or
temporary fluctuations in demand and
the corresponding costs of operations.2
As such, we included a reserve fund fee
to provide program stability year to
year.
The proposed initiation fee would not
apply to covered projects that were
already identified under FAST–41 and
posted to the Permitting Dashboard
prior to the effective date of this rule.
The effective date would be one day
after publication of the final rule. We
propose the effective date because it
estimates that project sponsors would
take only 2.5 hours to familiarize
themselves with the rule, complete the
FIN, and ensure that their accounting
system(s) can transfer the appropriate
initiation fee with the FIN. For FY 2019
and beyond, we may reassess the
amount of the initiation fee based on
early program implementation
experience and the number of FINs
submitted by project sponsors for
proposed covered projects, and to
adequately cover the reasonable costs of
FPISC–OED.
In addition, FAST–41 places a limit
on the fee structure that requires the fee
to ‘‘be established in a manner that
ensures that the aggregate amount of
fees collected for a fiscal year is
estimated not to exceed 20 percent of
the total estimated costs for the fiscal
year for the resources allocated for the
conduct of environmental reviews and
authorizations covered by this
subchapter, as determined by the
Director of the Office of Management
and Budget’’ (42 U.S.C. 4370m–8(c)(3)).
Therefore, the total estimated costs for
the fiscal year for the conduct of
environmental reviews and
authorizations covered by the
subchapter was calculated by adding the
cost for all environmental reviews under
the National Environmental Policy Act
2 Federal User Fees: A Design Guide, GAO–08–
386SP, May 2008. Available at: https://www.gao.gov/
new.items/d08386sp.pdf.
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(NEPA), all authorizations 3 for projects
that likely would have been covered
under FAST–41, and FPISC–OED costs.
Based on CEQ estimates on the average
costs of completing EISs ($250,000 to $2
million) and the number of final EISs
(FEISs) that were published (162), the
cost for environmental reviews under
NEPA was estimated to be
approximately $182.25 million in FY
2014.4
• Environmental reviews costs (low
range): Number of FEISs Published in
FY 2014 * Low Range for Average Cost
of EIS = 162 * $250,000 = $40.5 million
• Environmental reviews costs (high
range): Number of FEISs Published in
FY 2014 * High Range for Average Cost
of EIS = 162 * $2 million = $324 million
• Average cost: (High range + Low
rage)/2 = ($40.5 million + $324 million)/
2 = $182.25 million
The data for the cost of authorizations
for covered projects under FAST–41 is
derived from an OMB data call to the
Department of Agriculture, the
Department of Commerce, the
Department of Defense, the Department
of Energy, the Department of Homeland
Security, the Department of Housing
and Urban Development, the
Department of the Interior, the
Department of Transportation, the
Environmental Protection Agency, the
Advisory Council on Historic
Preservation, and the U.S. Army Corps
of Engineers on August 19, 2014
regarding agencies’ budgets for
infrastructure permitting and review
and other existing agency authorities for
financing infrastructure permitting
activities. The data collected from
agencies is current as of August 17,
2015. The average cost in FY 2014 for
authorizations for projects that likely
would have been covered under FAST–
41 was estimated to be approximately
$106.33 million. In addition, the costs
for FPISC–OED in FY 2017 were $4.75
million. FY 2017 numbers were used to
estimate FPISC–OED costs since the
office was not in existence in FY 2014.
Therefore, the aggregate amount of fees
collected for a fiscal year could not
exceed $58.67 million (20 percent of
$293.33 million). We estimate that
3 As defined in 42 U.S.C. 4370m(3) authorizations
‘‘means any license, permit, approval, finding,
determination, or other administrative decision
issued by an agency that is required or authorized
under Federal law in order to site, construct,
reconstruct, or commence operations of a covered
project administered by a Federal agency or, in the
case of a State that chooses to participate in the
environmental review and authorization process in
accordance with [42 U.S.C. 4370m–2(c)(3)(A)], a
State agency.’’
4 The NEPA Task Force Report to Council on
Environmental Quality: Modernizing NEPA
Implementation (Sept. 2003) at pp. 65–66.
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44851
FPISC–OED will have 24 new projects
in FY 2019 and by FY 2023 there will
be 48 new projects. Therefore, in FY
2019 the aggregate amount of fees
collected by FPISC–OED would be $4.80
million ($200,000 * 24 new projects)
and by FY 2023 the aggregate amount of
fees collected by FPISC–OED would be
$9.60 million ($200,000 * 48 new
projects). Thus, the aggregate amount of
fees would be far less than the 20
percent limit of $58.67 million. We
request comments on the calculation of
the proposed initiation fee and
proposed calculation of future initiation
fees.
C. Issues on Which the Permitting
Council Seeks Comment
Although we welcome comment on
any aspect of this proposal, FPISC is
particularly interested in receiving
comments and views of interested
parties concerning the following issues:
1. Initiation Fee Non-Refundable and
Due in Two Parts: The proposal to have
the initiation fee be non-refundable and
paid in two parts—$5,000 of the fee at
the time the project sponsor submits the
FIN, and then $195,000 within 10
business days of the Federal facilitating
or lead agency’s determination, the
Executive Director’s final determination,
or the Council’s opinion that the project
is a covered project under FAST–41.
2. Calculation of Initiation Fee: The
methodology and assumptions of the
calculation of the initiation fee as
discussed in III.B.iii.
3. Exclusions: The exclusions to the
initiation fee as discussed in section
III.A.iii.
D. Public Participation
We will accept comments, data, and
information regarding this proposed
rule no later than the date provided in
the DATES section. Interested parties
may submit comments using any of the
methods described in the ADDRESSES
section.
1. Submitting Comments via
Regulations.gov: The regulations.gov
web page will require you to provide
your name and contact information.
Your contact information will be
viewable to FPISC–OED and GSA staff
only. Your contact information will not
be publicly viewable except for your
first and last names, organization name
(if any), and submitter representative
name (if any). If your comment is not
processed properly because of technical
difficulties, FPISC–OED and GSA will
use this information to contact you. If
FPISC–OED and GSA cannot read your
comment due to technical difficulties
and cannot contact you for clarification,
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we may not be able to consider your
comment.
However, your contact information
will be publicly viewable if you include
it in the comment or in any documents
attached to your comment. Any
information that you do not want to be
publicly viewable should not be
included in your comment, nor in any
document attached to your comment.
Persons viewing comments will see only
first and last names, organization
names, correspondence containing
comments, and any documents
submitted with the comments.
Do not submit to regulations.gov
information for which disclosure is
restricted by statute, such as trade
secrets and commercial or financial
information (hereinafter referred to as
Confidential Business Information
(CBI)). Comments submitted through
regulations.gov cannot be claimed as
CBI. Comments received through the
website will waive any CBI claims for
the information submitted. For
information on submitting CBI, see the
Confidential Business Information
section below.
FPISC–OED and GSA processes
submissions made through
regulations.gov before posting.
Normally, comments will be posted
within a few days of being submitted.
However, if large volumes of comments
are being processed simultaneously,
your comment may not be viewable for
up to several weeks. Please keep the
comment tracking number that
regulations.gov provides after you have
successfully uploaded your comment.
2. Submitting Comments via Email or
Mail: Comments and documents
submitted via email, hand delivery, or
mail also will be posted to
regulations.gov. If you do not want your
personal contact information to be
publicly viewable, do not include it in
your comment or any accompanying
documents. Instead, provide your
contact information on a cover letter.
Include your first and last names, email
address, telephone number, and
optional mailing address. The cover
letter will not be publicly viewable as
long as it does not include any
comments.
Include contact information each time
you submit comments, data, documents,
and other information to FPISC–OED
and GSA. Email submissions are
preferred. If you submit via mail or
hand delivery, please provide all items
on a CD, if feasible. It is not necessary
to submit printed copies. No facsimiles
(faxes) will be accepted.
Comments, data, and other
information submitted electronically
should be provided in PDF (preferred),
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Microsoft Word, or Excel file format.
Provide documents that are not secured,
written in English, and are free of any
defects or viruses. Documents should
not contain special characters or any
form of encryption and, if possible, they
should carry the electronic signature of
the author.
(a) Campaign Form Letters: Please
submit campaign form letters by the
originating organization in batches of
between 50 to 500 form letters per PDF
or as one form letter with a list of
supporters’ names compiled into one or
more PDFs. This reduces comment
processing and posting time.
(b) Confidential Business Information:
Any person submitting information that
he or she believes to be confidential and
exempt by law from public disclosure
should submit via email, postal mail, or
hand delivery two well-marked copies:
one copy of the document marked
confidential including all the
information believed to be confidential,
and one copy of the document marked
non-confidential with the information
believed to be confidential deleted.
Submit these documents via email or on
a CD, if feasible. We will make our own
determination about the confidential
status of the information and treat it
according to its determination.
Factors of interest to us when
evaluating requests to treat submitted
information as confidential include: (1)
A description of the items, (2) whether
and why such items are customarily
treated as confidential within the
industry, (3) whether the information is
generally known by or available from
other sources, (4) whether the
information has previously been made
available to others without obligation
concerning its confidentiality, (5) an
explanation of the competitive injury to
the submitting person which would
result from public disclosure, (6) when
such information might lose its
confidential character due to the
passage of time, and (7) why disclosure
of the information would be contrary to
the public interest.
It is our policy that all comments may
be included in the public docket,
without change and as received,
including any personal information
provided in the comments (except
information deemed to be exempt from
public disclosure).
all documents listed in the index may
be publicly available, such as
information that is exempt from public
disclosure. A link to the docket web
page can be found at: https://
www.permits.performance.gov/tools/
notice-proposed-rule-makingpermitting-council-fast-41-initiationuser-fee. This web page contains a link
to the docket for this proposed rule on
the regulations.gov site. The
regulations.gov web page also contains
instructions on how to access all
documents, including public comments,
in the docket.
E. Docket
The docket is available for review at
https://www.regulations.gov and
includes Federal Register notices,
public comments, and other supporting
documents and materials. All
documents in the docket are listed in
the regulations.gov index. However, not
i. Scope and Key Inputs to the Analysis
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IV. Regulatory Review
A. Executive Order 12866: Regulatory
Planning and Review, and Executive
Order 13563: Improving Regulation and
Regulatory Review
This rule is a ‘‘significant regulatory
action’’ under Executive Order 12866 so
it was submitted to OMB for review.
We evaluated the potential costs and
benefits that could result from this
rulemaking. As presented in Table 1, we
estimate that the proposed rule would
result in a 10-year total cost of $20,637
undiscounted, $18,290 discounted at 3
percent, and $15,847 discounted at 7
percent. On an annualized basis, the
proposed rule would result in a cost of
$2,064 undiscounted, $2,144 discounted
at 3 percent, and $2,256 discounted at
7 percent. The transfer provision
accounts for the non-refundable portion
of the initiation fee for all FINs as well
as the additional fee required from
successful project sponsors. We
determined that over a 10-year period,
the proposed rule will tranfer funds
from project sponsors to FPISC–OED
totaling $78.692 million undiscounted,
$67.963 million discounted at 3 percent,
and $56.795 million discounted at 7
percent. On an annualized basis, the
transfer provision amounts to $7.869
million undiscounted, $7.967 million
discounted at 3 percent, and $8.086
million discounted at 7 percent.
Although we were unable to quantify
benefits directly attributable to the fee,
we do understand that there are
significant benefits from FPISC–OED’s
services and the fee will allow the
program to continue in future years. We
invite comments from the public on
how to estimate these benefits.
We estimated that rule familiarization
would occur only during the first year
of the analysis period and would require
familiarization by a manager and by an
environmental engineer. When
determining the initiation fee, we
assumed there would be 48 projects
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whose sponsors would submit FINs
each year. While we expect the program
to reach this level over time, fewer than
48 FINs are expected for the first few
years as the program ramps up and
expands. For the purposes of this
analysis, we estimate that 24 FINs will
be received from project sponsors in FY
2019, 26 FINs will be received in FY
2020, 33 FINs will be received in FY
2021, 41 FINs will be received in FY
2022, and 48 FINs will be received each
year in FY 2023 through FY 2028.
We evaluated changes in the
opportunity cost of time for project
sponsors and other stakeholders using
wage rates to represent the value of
managers’ or engineers’ time that, in the
absence of the rule, would not have
been spent on rule familiarization or
completing FINs to gather fee amounts.
This analysis uses wage rates for
General and Operations Managers
(occupation code 11–1021) in the
Utilities sector (North American
Industry Classification System code 22)
as well as wage rates for Environmental
Engineers (occupation code 17–2081) in
the Utilities sector (NAICS code 22).
The source for wages is the median
hourly wage data (May 2016) from the
U.S. Department of Labor (DOL), Bureau
of Labor Statistics (BLS), Occupational
Employment Statistics (OES).5 The BLS
does not publish data on fringe benefits
for specific occupations, but it does for
the broad industry groups in its
Employer Costs for Employee
Compensation (ECEC) release. This
analysis uses an hourly wage of $58.16
for managers and an hourly wage of
$41.10 for environmental engineers. For
private industry, benefits account for
30.4 percent of employer costs,6 while
the remaining 69.6 percent of employer
costs are directed towards salary.
Therefore, we applied a loaded wage
rate factor of 1.44 to account for total
costs to employers (inclusive of
benefits) when calculating cost
associated with rule familiarization and
application completion (1.44 = 1 + 30.9/
69.6).
ii. Costs
Rule familiarization is expected to
require one hour of a manager’s time
and one hour of an environmental
engineer’s time for each project sponsor
or other interested stakeholder. Because
24 FINs are expected in FY 2019, and
because rule familiarization only takes
place in FY 2019, the proposed rule will
require a total of 24 hours of managers’
time and 24 hours of environmental
engineers’ time at the appropriate wage
rates (as discussed in the ‘‘Scope and
Key Inputs to the Analysis’’ section of
this proposed rule). Therefore, over the
10-year analysis period, the only costs
associated with rule familiarization
occur in FY 2019 and amount to $3,423
(24 projects × (1 hour of time required
for manager’s familiarization × $58.16
wage for manager × 1.44 loaded wage
rate factor) + (1 hour of time required for
environmental engineer’s
familiarization × $41.10 wage for
environmental engineer × 1.44 loaded
wage rate factor)).
There are also costs associated with
the additional time required for project
sponsors to complete the FIN as a result
of the changes introduced by this
proposed rule, namely gathering an
initiation fee. We estimate that program
sponsors in each year will require 0.5
hours of a manager’s time at the
appropriate wage rate (as discussed in
the ‘‘Scope and Key Inputs to the
Analysis’’ section of this proposed rule)
as a result of the new FIN elements. We
expect the number of FINs to reach 48
by FY 2023, but expect fewer than 48
FINs each year between FY 2019 and FY
2022. The 10-year total undiscounted
cost of time associated with FIN
completion is $17,214. This is
calculated by multiplying the 0.5 hours
of managers’ time by the associated
wage rate (including accounting for the
loaded wage rate factor) to get $41.78 (=
0.5 × 1.44 × $58.16), then multiplying
this amount by the number of FINs
expected in each year. For the purposes
of this analysis, we estimate that 24
FINs will be received from project
sponsors in FY 2019, 26 FINs will be
received in FY2020, 33 FINs will be
received in FY 2021, 41 FINs will be
received in FY 2022, and 48 FINs will
be received each year in FY 2023
through FY 2028. The total cost across
all years is $17,214.
Table 1 of this proposed rule shows
the combined costs of rule
familiarization and FIN completion. As
presented in Table 1, the proposed rule
would result in a 10-year total cost of
$20,637 undiscounted, $18,290
discounted at 3 percent, and $15,847
discounted at 7 percent. On an
annualized basis, the proposed rule
would result in an undiscounted cost of
$2,064, $2,144 discounted at 3 percent,
and $2,256 discounted at 7 percent.
Rule famliarization costs are assumed to
occur only in FY 2019, and therefore are
not discounted at either 3 percent or 7
percent. Costs associated with FIN
completion occur each year and are
discounted.
TABLE 1—SUMMARY OF THE TOTAL COSTS OF THE PROPOSED RULE
[2016$]
Discounted
Rule
familiarization
Year
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2018
2019
2020
2021
2022
2023
2024
2025
2026
2027
FIN
completion
Total
costs (a)
Discounted
at 3%
Discounted
at 7%
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
$3,423
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
N/A
$1,003
1,086
1,379
1,713
2,006
2,006
2,006
2,006
2,006
2,006
$4,426
1,086
1,379
1,713
2,006
2,006
2,006
2,006
2,006
2,006
$4,426
1,055
1,300
1,568
1,782
1,782
1,782
1,782
1,782
1,782
$4,426
1,015
1,204
1,398
1,530
1,530
1,530
1,530
1,530
1,530
Total ...........................................................................................................
Annualized .........................................................................................................
3,423
............................
17,214
........................
20,637
2,064
18,290
2,144
15,847
2,256
Notes:
(a) Total
cost values may not equal the sum of the components due to rounding.
5 U.S. Department of Labor (DOL), Bureau of
Labor Statistics (BLS). Occupational Employment
Statistics (OES). National Industry-Specific
Occupational Employment and Wage Estimates.
May 2016. Available at: https://www.bls.gov/oes/
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16:36 Aug 31, 2018
Jkt 244001
current/naics2_22.htm#11-0000 (accessed February
8, 2018).
6 U.S. Department of Labor, Bureau of Labor
Statistics (BLS). Employer Costs for Employee
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
Compensation—September 2017. December 15,
2017. https://www.bls.gov/news.release/pdf/
ecec.pdf (accessed February 16, 2018).
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sradovich on DSK3GMQ082PROD with PROPOSALS
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Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules
iii. Benefits
In considering the potential impacts
of the proposed rule, we anticipate that
there will be no change in potential
benefits associated with this rule.
Benefits are not quantified in this
analysis. However, the proposed rule is
associated with benefits in that it allows
for the continuation of the FPISC–OED’s
services. An initiation fee is necessary
because as an oversight council, FPISC–
OED is responsible for implementing
the provisions of FAST–41 by
facilitating and institutionalizing the
transparency, accountability, and
coordination among Federal agencies
related to the Federal environmental
review and authorization process. The
fee allows FPISC–OED to carry out its
obligations to improve the infrastructure
permitting process. Specifically, an
initiation fee would allow FPISC to
continue to produce the following
benefits for projects found to be
‘‘covered’’ under FAST–41:
• Enhanced coordination: When a
proposed project becomes a covered
project under FAST–41, the lead or
facilitating agency, as applicable, must
identify all agencies and governmental
entities likely to have financing,
environmental reviews, authorizations,
or other responsibilities with respect to
the covered project, and invite all
Federal agencies to become
participating or cooperating agencies (42
U.S.C. 4370m–2(a)(2)(A)(ii)). The lead or
facilitating agency, as applicable, in
consultation with each coordinating and
participating agency, shall establish a
project-specific CPP for coordinating
public and agency participation in, and
completion of, any required Federal
environmental review and authorization
for the project (42 U.S.C. 4370m–
2(c)(1)(A)). Advanced coordination has
been known to help improve the
efficiency of reviews by allowing early
communication of project goals and
discussion of potential alternatives with
permitting agencies and stakeholders
which can lead to environmental
reviews and authorizations being
completed earlier by identifying and
addressing potential causes of delay
earlier in the process.
• Enhanced visibility and
predictability: The lead agency, within a
CPP, will develop a permitting timetable
for each covered project, which
establishes scheduled dates for all
required Federal environmental reviews
and authorizations (as well as for State
permits and environmental reviews
when the State elects to participate in
the FAST–41 process) based on projectspecific factors, statutory and regulatory
requirements, and historical timeframes
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for the activities. Scheduled and actual
timeframes for government processes
will be publicly displayed and tracked
on the online Permitting Dashboard. If
an environmental review or
authorization is delayed, the lead,
cooperating, or participating agency is
required to update the schedule at least
30 days before the currently reported
completion date and the agency will not
be allowed to extend the final
completion date by more than 30 days
without consulting with the project
sponsor. The enhanced visibility and
predictability leads to greater
accountability by Federal agencies. As
discussed in the FAST–41
Implementation Guidance,
environmental review and authorization
schedules for independent regulatory
commissions are not subject to review
and oversight by project sponsors or
other government offices.
• Enhanced accountability: Covered
projects benefit from high-level
oversight on the permitting process from
the Executive Director to ensure that
Federal agencies follow FAST–41
processes and adhere to established
timeframes. If the lead, participating or
cooperating agencies delay the
permitting process by more than 150
percent of the original schedule, it must
be reported to Congress (42 U.S.C.
4370m–2(c)(2)(D)(iii)).
• Enhanced public participation:
Specific timeframes have been
developed for certain public
participation activities, including early
coordination for collection of key
concerns, public involvement in the
development of reasonable alternatives,
and public comment periods on draft
EISs. For example, the lead agency must
establish a comment period for draft
EISs to be between 45 days and 60 days
unless the lead agency, project sponsor,
and any cooperating agency agree to a
longer deadline or the lead agency, in
consultation with each cooperating
agency, extends the deadline for good
cause (42 U.S.C. 4370m–4(d)(i)).
• Enhanced legal protections: The
statute of limitations to challenge any
Federal authorizations for covered
projects is reduced from 6 years to 2
years from the date the authorization is
issued by the agency, and future claims
pertaining to a Federal environmental
review may be brought only if the
commenter filed a sufficiently detailed
comment and put the lead agency on
notice of the issue during the
environmental review process. Persons
who did not submit comments on the
environmental review would not have
any standing to challenge the
authorization for a covered project (42
U.S.C. 4370m–6(a)).
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B. Paperwork Reduction Act
This rulemaking does not include any
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires preparation
of an initial regulatory flexibility
analysis (IRFA) for any rule that by law
must be proposed for public comment,
unless the agency certifies that the rule,
if promulgated, will not have a
significant economic impact on a
substantial number of small entities.
This proposed rule establishes a user
fee for voluntary use of Permitting
Council services for the purposes of
streamlining Federal environmental
reviews and authorizations for covered
infrastructure projects. Entities may still
receive Federal environmental reviews
and authorizations without the use of
Permitting Council services.
This proposed rule may affect up to
several dozen entities at any given time.
Based on the current list of 37 covered
projects in NAICS codes 2211 (Electric
power generation, transmission and
distribution) and 2212 (Natural gas
distribution), approximately one third
count as small entities according to
Small Business Administration (SBA)
size standards. Therefore, this rule will
have an impact on a substantial number
of small entities. However, this rule will
not have a significant economic impact
on those entities. The costs of the rule
occur across two categories (rule
familiarization and application
completion) and at most, have an
impact of $185 per firm ($143 for rule
familiarization and $42 for application
completion). The standard threshold for
a significant economic impact is
considered 1 percent of a firm’s
revenue. Of the 37 current covered
projects, no project sponsor has revenue
less than $42 million.7 With rule costs
of $185, these only account for less than
0.0004 percent of revenue (= 185/
42,000,000). Even when considering the
fee amount of $200,000, the rule only
accounts for 0.5 percent of revenue. No
current or future entity in these NAICS
codes likely has revenues such that this
amount would constitute an undue
burden and furthermore, participation
in this program is voluntary and no firm
is required to pay the fee discussed in
this proposed rulemaking in order to
receive a Federal environmental review
or authorization (although other fees
may apply based on specific
7 Revenue estimates were gathered from publicly
available revenue data or project sponsor annual
reports.
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environmental review or authorization
and agency requirements).
For the reasons stated above, we
certify that this proposed rule, if
promulgated, will not have a significant
economic impact on a substantial
number of small entities. Therefore, the
Regulatory Flexibility Act, as amended,
does not require us to prepare a
regulatory flexibility analysis.
sradovich on DSK3GMQ082PROD with PROPOSALS
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (URMA) requires
each Federal agency to assess the effects
of Federal regulatory actions on State,
local, and Tribal governments and the
private sector (Pub. L. 104–4, sec. 201
(codified at 2 U.S.C. 1531)). For a
regulatory action likely to result in a
rule that may cause the expenditure by
State, local, and Tribal governments, in
the aggregate, or by the private sector of
$100 million or more in any one year
(adjusted annually for inflation), section
202 of UMRA requires a Federal agency
to publish a written statement that
estimates the resulting costs, benefits,
and other effects on the national
economy (2 U.S.C. 1532(a) and (b)). The
UMRA also requires a Federal agency to
develop an effective process to permit
timely input by elected officers of State,
local, and Tribal governments on a
‘‘significant intergovernmental
mandate,’’ and requires an agency plan
for giving notice and opportunity for
timely input to potentially affected
small governments before establishing
any requirements that might
significantly or uniquely affect small
governments. This proposed rule does
not contain a Federal intergovernmental
or private sector mandate, as those
terms are defined in UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, ‘‘Federalism,’’
published at 64 FR 43255, on August 4,
1999, imposes certain requirements on
agencies formulating and implementing
policies and regulations that preempt
State law or that have federalism
implications. The Executive Order
requires agencies to examine the
constitutional and statutory authority
supporting any action that would limit
the policymaking discretion of the states
and then carefully assess the necessity
for such actions. The Executive Order
also requires agencies to have a process
to ensure meaningful and timely input
by State and local officials in the
development of regulatory policies that
have federalism implications. We
examined this proposed rule and have
determined that, if promulgated, it will
not pre-empt State law. This action
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impacts project sponsors of FAST–41
covered projects. Accordingly, no
further action is required by Executive
Order 13132.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments,’’ published at 65 FR
67249, on Nov. 9, 2000, reaffirms the
Federal government’s commitment to
tribal sovereignty, self-determination,
and self-government. Its purpose is to
ensure that all agencies consult with the
Indian tribes and respect tribal
sovereignty as they develop policy on
issues that impact Indian communities.
This proposed rule will allow a tribal
government, or a consortium of tribal
governments, to apply as project
sponsors for an infrastructure project to
become a FAST–41 covered project, and
covered projects may be implemented
on tribal lands. In addition, a tribal
government or a consortium of tribal
governments may be asked by a lead
agency to become a cooperating or
participating agency on a FAST–41
covered project. On November 30, 2017,
the Executive Director of the Permitting
Council sent letters to 567 federallyrecognized tribes requesting
consultation on this proposed rule. The
Muscogee (CREEK) Nation provided a
comment that requested an automatic
exemption from the initiation fee for
tribal governments proposing projects
on trust property under FAST–41.
The United States government has
specific responsibilities to each Tribe
based on treaties, statutes, or other
sources. Consistent with these
responsibilities, the trust relationship,
and the government-to-government
relationship between the Federal
government and federally-recognized
tribes, the Federal government often
provides services to tribes relating to the
protection of trust assets at no cost.
Therefore, the proposed rule includes
an exemption for tribal grants proposing
projects on trust property under FAST–
41.
G. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ published at 66
FR 28355 on May 22, 2001, requires
Federal agencies to prepare and submit
to OMB’s Office of Information and
Regulatory Affairs (OIRA) a Statement of
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Fmt 4702
Sfmt 4702
44855
Energy Effects for any proposed
significant energy action. A ‘‘significant
energy action’’ is defined as any action
by an agency that promulgates or is
expected to lead to promulgation of a
final rule or regulation, and that: (1) Is
a significant regulatory action under
Executive Order 12866, or any successor
order; and (2) is likely to have a
significant adverse effect on the supply,
distribution, or use of energy; or (3) is
designated by the Administrator of
OIRA as a significant energy action. For
any proposed significant energy action,
the agency must give a detailed
statement of any adverse effects on
energy supply, distribution, or use
should the proposal be implemented,
and of reasonable alternatives to the
action and their expected benefits on
energy supply, distribution, and use.
We have preliminarily concluded that
this regulatory action is not a
‘‘significant energy action’’ because the
proposed rulemaking is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy,
nor has it been designated as such by
the Administrator at OIRA. Accordingly,
we have not prepared a Statement of
Energy Effects for this proposed rule.
H. National Environmental Policy Act
Each infrastructure project that is
covered under FAST–41 requires
Federal agencies to render certain
decisions. Such Federal agencies are
required to adhere to the National
Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.) when
making those decisions. This
rulemaking simply imposes fees on
those project sponsors applying to
become a covered project under FAST–
41; therefore, by itself, this rulemaking
would not have any effect on the quality
of the environment.
I. Executive Order 13771: Reducing
Regulation and Controlling Regulatory
Costs
This rule is not expected to be subject
to the requirements of Executive Order
13771, published at 82 FR 9339, on
February 3, 2017.
List of Subjects in 40 CFR Part 1900
Administrative practice and
procedure, Fees, Reporting and
recordkeeping requirements.
Dated: August 27, 2018.
Angela F. Colamaria,
Acting Executive Director, Federal Permitting
Improvement Steering Council—Office of the
Executive Director (FPISC–OED).
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Federal Register / Vol. 83, No. 171 / Tuesday, September 4, 2018 / Proposed Rules
For the reasons stated in the preamble,
under the authority of 42 U.S.C. 4370m
et seq., FPISC proposes to add chapter
IX to title 40 of the Code of Federal
Regulations as set forth below:
■
CHAPTER IX—FEDERAL PERMITTING
IMPROVEMENT STEERING COUNCIL
PART 1900—COORDINATION OF
ENVIRONMENTAL REVIEWS AND
AUTHORIZATIONS—FEES
Subpart A—General
Sec.
1900.1 Purpose and scope.
1900.2 Definitions.
1900.3 Initiation fee.
Subpart B—[Reserved]
Authority: 42 U.S.C. 4370m et seq.
Subpart A—General
§ 1900.1
Purpose and scope.
The purpose of this part is to establish
an initiation fee to reimburse the
Federal Permitting Improvement
Steering Council-Office of the Executive
Director (FPISC–OED) for costs incurred
in the coordination of environmental
reviews and authorizations under Title
41 of the Fixing America’s Surface
Transportation Act of 2015 (FAST–41)
(42 U.S.C. 4370m et seq.). As of [date
one day after the publication of the final
rule in the Federal Register], any project
sponsor submitting a FAST–41
initiation notice must comply with all
applicable requirements of this part.
§ 1900.2
Definitions.
sradovich on DSK3GMQ082PROD with PROPOSALS
As used in this part—
Agency means the same as the term in
5 U.S.C. 551.
Business day means Monday through
Friday and excludes Federal legal
holidays.
Covered project means the same as the
term in 42 U.S.C. 4370m(6).
Environmental Review Improvement
Fund means the fund established in the
Treasury of the United States to deposit
any initiation fees collected by FPISC–
OED.
Executive Director means the same as
the term in 42 U.S.C. 4370m(12).
Facilitating agency means the same as
the term in 42 U.S.C. 4370m(13).
FAST–41 means Title 41 of the Fixing
America’s Surface Transportation Act,
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16:36 Aug 31, 2018
Jkt 244001
codified at 42 U.S.C. 4370m through
4370m–12.
FAST–41 initiation notice (FIN)
means a FAST–41 initiation notice of a
proposed covered project that a project
sponsor submits to the Federal
facilitating or lead agency and FPISC–
OED.
FPISC–OED means the Federal
Permitting Improvement Steering
Council-Office of the Executive Director
that supports the Federal Permitting
Improvement Steering Council in
implementing the provisions of FAST–
41.
Indian tribe means any Indian tribe,
band, nation, or other organized group
or community, including any Alaskan
Native village or regional or village
corporation as defined in or established
pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.),
that is recognized as eligible for the
special programs and services provided
by the United States to Indians because
of their status as Indians.
Initiation fee means a non-refundable
payment submitted by a project
sponsors in two parts: When the
sponsor submits a FAST–41 initiation
notice, and upon determination that the
project is a covered project under
FAST–41.
Lead agency means the same as the
term in 42 U.S.C. 4370m(15).
NEPA means the National
Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.).
Project sponsor means the same as the
term in 42 U.S.C. 4370m(18).
§ 1900.3
FAST—41 initiation fee.
(a) Initiation fee. A project sponsor
shall submit an initiation fee of
$200,000, $5,000 of which the project
sponsor shall pay upon submission of a
FIN and $195,000 of which the project
sponsor shall pay within 10 business
days of being notified that a project is
a covered project.
(b) Adjustment of initiation fee. Each
fiscal year, beginning in FY 2019, the
FPISC–OED may reassess and adjust the
amount of the initiation fee described in
paragraph (a) of this section based on
program implementation experience
and the number of infrastructure
projects seeking to become ‘‘covered
projects’’ under FAST–41, and to
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Frm 00013
Fmt 4702
Sfmt 9990
adequately cover reasonable costs of the
FPISC–OED. The FPISC–OED will
publish this amount in a Federal
Register document.
(c) Exemptions. The initiation fee
shall be excluded for the following
parties:
(1) Indian tribe proposing covered
projects on trust property; and
(2) Other parties determined by
FPISC–OED, in whole or in part, for
which an initiation fee would impose an
undue financial burden or is otherwise
determined to be inappropriate. A
project sponsor must submit a petition
for exemption which provides sufficient
evidence to demonstrate that the
initiation fee would be economically
burdensome or inappropriate. FPISC–
OED will consider the following factors
in making an exemption determination:
(i) The nature and cost of the
infrastructure project;
(ii) The financial impact of the
initiation fee on the project sponsor;
(iii) The financial resources of the
project sponsor; and
(iv) The type of operations of the
project sponsor.
(d) On or before 30 days from the date
that a project sponsor submits a
complete petition for exemption, the
Executive Director shall decide whether
FPISC–OED will approve the petition
for exemption based on the factors set
forth in paragraph (c)(2) of this section.
Upon a determination, the Executive
Director shall notify in writing a project
sponsor of the determination, including
a statement of reasons.
(e) Use of initiation fee. The collected
initiation fees will be available to
FPISC–OED, without appropriation or
fiscal year limitation, solely for the
purposes of administering and
implementing 42 U.S.C. Chapter 44,
Subchapter IV: Federal Permitting
Improvement, including the expenses of
the Council.
(f) Collection. All fee amounts
collected under paragraph (a) of this
section will be deposited into the
Environmental Review Improvement
Fund.
Subpart B—[Reserved]
[FR Doc. 2018–19032 Filed 8–31–18; 8:45 am]
BILLING CODE 6820–BR–P
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Agencies
- FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL
[Federal Register Volume 83, Number 171 (Tuesday, September 4, 2018)]
[Proposed Rules]
[Pages 44846-44856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19032]
=======================================================================
-----------------------------------------------------------------------
FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL
40 CFR Chapter IX
[FPISC Case 2018-001; Docket No. 2018-0008; Sequence No. 1]
RIN 3090-AJ88
Fees for Governance, Oversight, and Processing of Environmental
Reviews and Authorizations by the Federal Permitting Improvement
Steering Council
AGENCY: Federal Permitting Improvement Steering Council.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice of proposed rulemaking proposes to establish an
initiation fee for project sponsors to reimburse the Federal Permitting
Improvement Steering Council--Office of the Executive Director (FPISC-
OED) for reasonable costs to implement certain requirements and
authorities required under Title 41 of the Fixing America's Surface
Transportation Act (FAST-41) and costs of operating FPISC-OED. FAST-41
creates a new authority to establish a fee structure to reimburse
reasonable costs incurred in implementing certain requirements and
authorities including the costs to agencies and the costs of operating
the Permitting Council. In this rulemaking, we propose an initiation
fee that would cover only reasonable costs for FPISC-OED's operations
and costs to provide oversight and support to implement FAST-41. We
seek comments on all aspects of the proposed rulemaking.
DATES: We will accept comments, data, and information regarding this
proposed rule no later than November 5, 2018.
ADDRESSES: Submit comments in response to FPISC Case 2018-001 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``FPISC Case
2018-001'', under the heading ``Enter Keyword or ID'' and select
``Search''. Select the link ``Submit a Comment'' that corresponds with
``FPISC Case 2018-001'' and follow the instructions provided at the
``Comment Now'' screen. Please include your name, company name (if
any), and ``FPISC Case 2018-001'' on your attached document.
Mail: FPISC-OED, c/o General Services Administration,
Regulatory Secretariat (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street
NW, Washington, DC 20405.
Instructions: Please submit comments only and cite FPISC Case 2018-
001 in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided. To
confirm receipt of your comment(s), please check www.regulations.gov
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Amber Levofsky, Federal Permitting
Improvement Steering Council--Office of the Executive Director, 1800 F
Street NW, Washington, DC 20504; telephone number: 202-412-2064; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Authority
III. Discussion
A. Proposed Regulations
i. Sec. 1900.1 Purpose and Scope
ii. Sec. 1900.2 Definitions
iii. Sec. 1900.3 FAST-41 Initiation Fee
B. Economic Impacts
i. Benefits of the Initiation Fee to Project Sponsors of Covered
Projects
ii. Costs of the Initiation Fee to Project Sponsors of Covered
Projects
iii. Determination of Amount of Initiation Fee
C. Issues on Which We Seek Comment
i. Initiation Fee Non-Refundable and Due in Two Parts
ii. Calculation of Initiation Fee
iii. Exclusions
D. Public Participation
E. Docket
IV. Regulatory Review
A. Executive Order 12866
i. Scope and Key Inputs to the Analysis
ii. Costs
iii. Benefits
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
H. National Environmental Policy Act
I. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
[[Page 44847]]
I. Background
Title 41 of the Fixing America's Surface Transportation Act (Pub.
L. 114-94, secs. 41001 et seq. (Dec. 4, 2015) (codified at 42 U.S.C.
4370m et seq.)) (FAST-41) seeks to encourage greater coordination
across the Federal Government in environmental reviews and
authorizations for large, complex infrastructure projects. To oversee
its implementation, FAST-41 created the Federal Permitting Improvement
Steering Council (FPISC or Permitting Council), which is chaired by an
Executive Director appointed by the President and consists of Deputy
Secretary-level members from 14 Federal agencies, the Council on
Environmental Quality (CEQ), and the Office of Management and Budget
(OMB) (42 U.S.C. 4370m-1). The 14 Federal agencies include 13 agencies
designated in FAST-41 as enacted (42 U.S.C. 4370m-1(b)(2)(B)), as well
as the General Services Administration (GSA), which was invited to join
the Permitting Council by the Executive Director pursuant to 42 U.S.C.
4370m-1(b)(2)(B)(xiv) on May 2, 2017. In addition, GSA was designated
by the OMB Director to provide administrative support for the Executive
Director and, as reasonably necessary, provide support and staff to
enable the Executive Director to fulfill the duties of the position,
effective March 1, 2016 (42 U.S.C. 4370m-1(d)). GSA's membership in the
Permitting Council and its role in providing administrative support to
the Permitting Council establish the basis for GSA to assist the FPISC
with this proposal (The term ``we'' as used in this document refers to
the Permitting Council).
To become a new covered project under FAST-41, the project sponsor
must submit a complete FAST-41 initiation notice (FIN) and send it to
the facilitating agency, as designated in the OMB and CEQ Guidance to
Federal Agencies Regarding the Environmental Review and Authorization
Process for Infrastructure Projects (FAST-41 Implementation Guidance,
published January 13, 2017) at https://www.permits.performance.gov/tools/fast-41-implementation-guidance, and the Executive Director.
However, project sponsors have the option to engage and consult with
potential lead, participating, and cooperating agencies (as defined in
42 U.S.C. 4370m) early in the project lifecycle, before they submit a
FIN. FPISC-OED facilitates many of these consultations and discusses
with the project sponsor the various considerations that project
sponsors may take into account when determining whether and when to
submit a FIN. For example, FPISC-OED will ensure the project sponsor
knows who the facilitating agency would be for the project, the best
approach in moving forward if there is a formalized pre-application
process already in place, and an understanding of eligibility under
FAST-41. For additional information on the requirements for a project
to become covered under FAST-41 and the coordination recommended for
project sponsors interested in submitting a FIN, see the FAST-41
Implementation Guidance.
If a FIN is approved and the project becomes a covered project
under FAST-41, FPISC-OED supports the relevant Federal agencies and
project sponsor during the Federal environmental review and
authorization process. This support can include managing the integrity
and content of data on the publicly-available Permitting Dashboard
regarding schedules for the specific permits during the permitting
process, verifying the accuracy of the data on a routine basis,
assessing and determining the viability of modifications to schedules
after they are posted on the Permitting Dashboard, and handling
disputes between Federal agencies or between a project sponsor and a
Federal agency related to the schedules (42 U.S.C. 4370m-2(c)(2)). In
addition, FPISC-OED facilitates regularly scheduled Permitting Council
meetings, consultations with the Department of Transportation (DOT) on
Permitting Dashboard management, and meetings with project sponsors
regarding project status and any updates related to agency
coordination.
The duties of the Executive Director include, but are not limited
to:
Developing, in consultation with the Permitting Council,
``recommended performance schedules, including intermediate and final
completion dates, for environmental reviews and authorizations most
commonly required for each category of covered projects'' (42 U.S.C.
4370m-1(c)(1)(C));
Recommending, in consultation with the Permitting Council,
to the Director of OMB or to CEQ, guidance for agencies to carry out
the responsibilities of FAST-41(42 U.S.C. 4370m-1(c)(1)(D));
Coordinating with the Permitting Council to issue yearly
recommendations on best practices for the categories outlined in 42
U.S.C. 4370m-1(c)(2)(B);
Coordinating with the Permitting Council to meet annually
with groups or individuals representing State, tribal, and local
governments that are engaged in the infrastructure permitting process
(42 U.S.C. 4370m-1(c)(2)(C));
Reviewing and approving any modifications of more than 30
days to the permitting schedule of covered projects to prevent undue
delays and ensure a realistic and concurred-upon schedule has been
developed, upon which all parties will act moving forward (42 U.S.C.
4370m-2(c)(2)(D)(i)(III)); and
Mediating disputes between project sponsors and relevant
agencies related to the permitting timetable. If no conclusions are
made after a total of 60 days, the Office of Management and Budget will
make a final decision (42 U.S.C. 4370m-2(c)(2)(C).
This document proposes to establish a required initiation fee for
project sponsors to reimburse FPISC-OED for reasonable costs to
implement the requirements and authorities mentioned above under FAST-
41 and costs of operating FPISC-OED. The fee is necessary because as an
oversight council, FPISC-OED is responsible for implementing the
provisions of FAST-41 by facilitating and institutionalizing the
transparency, accountability, and coordination among Federal agencies
related to the Federal environmental review and authorization process.
The fee allows FPISC-OED to carry out its obligations to improve the
infrastructure permitting process.
II. Authority
Pursuant to 42 U.S.C. 4370m-8(a), the heads of Permitting Council
agencies, with the guidance of the Director of OMB and in consultation
with the Executive Director, may issue regulations establishing a fee
structure to recover, from project sponsors, reasonable costs incurred
in conducting environmental reviews and authorizations for
infrastructure projects covered by FAST-41. Reasonable costs include
costs to implement the requirements and authorities of 42 U.S.C. 4370m-
1 and 4370m-2, including (1) the costs to agencies and (2) the costs of
operating the Council (42 U.S.C. 4370m-8(b)), which includes FPISC-OED.
III. Discussion
A. Proposed Regulations
i. Sec. 1900.1 Purpose and Scope
FAST-41 established a new governance structure, set of procedures,
and authorities to improve the timeliness, predictability, and
transparency of the Federal environmental review and authorization
process for covered infrastructure projects. Section 1900.1 of this
proposed
[[Page 44848]]
regulation would restate the statutory requirement and introduce the
purpose of the proposed requirements. Section 1900.1 also would set the
rule's effective date (i.e., the date on which project sponsors would
have to comply with the rule).
We propose the effective date to be one day following publication
of a final rule because we estimate that project sponsors will take
only 2.5 hours to familiarize themselves with the rule, complete the
FIN, and ensure that their accounting system(s) can transfer the
appropriate initiation fee with the FIN. FAST-41 was signed into law in
December 2015; since then, seven projects have submitted FINs and gone
through the process of becoming covered projects. We request comment on
the effective date of the proposed rule and whether the proposed
effective date would provide project sponsors sufficient time to
adequately comply with the regulations.
ii. Sec. 1900.2 Definitions
Section 1900.2 would define key terms used throughout the proposed
regulations, many of which were derived from FAST-41, with
modifications where further clarification was needed. We propose to
adopt the same definition of the following terms as they are defined in
42 U.S.C. 4370m: ``Agency,'' ``Covered project,'' ``Executive
Director,'' ``Facilitating agency,'' ``Lead agency,'' ``NEPA,'' and
``Project sponsor.'' In addition, we propose to add the following terms
that have not been defined in FAST-41 to provide clarity for the
regulations:
(a) Business day. We propose that the term ``business day'' means
Monday through Friday and excludes Federal legal holidays.
(b) Environmental Review Improvement Fund. We propose that the term
``Environmental Review Improvement Fund'' refers to the fund described
in 42 U.S.C. 4370m-8(d) which must be established in the Treasury of
the United States to deposit any fees collected. The amounts available
in the Environmental Review and Improvement Fund shall be available to
the Executive Director, without appropriation or fiscal year
limitation, solely for the purposes of administering, implementing, and
enforcing FAST-41, including the expenses of the Council;
(c) FAST-41. We propose to define the term ``FAST-41'' to mean
Title 41 of the Fixing America's Surface Transportation Act (Pub. L.
114-94, 41001 et seq. (Dec. 4, 2015) (codified at 42 U.S.C. 4370m et
seq.)) which is the basis for this proposed regulation;
(d) FAST-41 initiation notice (FIN). We propose to define the term
``FAST-41 initiation notice,'' which is not defined in Title 42 of the
United States Code, as a FAST-41 initiation notice of a proposed
covered project that a project sponsor submits to FPISC-OED and the
facilitating agency;
(e) FPISC-OED. We propose to define the term ``FPISC-OED,'' which
is not defined in Title 42 of the United States Code, as the Federal
Permitting Improvement Steering Council-Office of Executive Director
that supports the Federal Permitting Improvement Steering Council in
implementing the provisions of FAST-41;
(f) Indian tribe. We propose to define the term ``Indian tribe,''
which is not defined in Title 42 of the United States Code, as any
Indian tribe, band, nation, or other organized group or community,
including any Alaskan Native village or regional or village corporation
as defined in or established pursuant to the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.), that is recognized as eligible
for the special programs and services provided by the United States to
Indians because of their status as Indians.
(g) Initiation Fee. We propose to define the term ``initiation
fee,'' which is not defined in Title 42 of the United States Code, as a
non-refundable payment submitted by a project sponsor. The proposed
rule provides more detail on the initiation fee amount and how it will
be assessed.
iii. Sec. 1900.3 FAST-41 Initiation Fee
In proposed section 1900.3(a), we propose an initiation fee of
$200,000 per FIN submitted for each project by a project sponsor of a
proposed covered project. An explanation of how this amount was
determined is discussed in section B.iii of this proposed rule. The
initiation fee would be due in two parts--$5,000 would be due at the
time the project sponsor submits the FIN and $195,000 would be due
within 10 business days of a determination that the project is a
covered project for purposes of FAST-41. The $5,000 non-refundable
portion was determined through analysis of FPISC-OED's costs incurred
on pre-coordination with project sponsors, pre-coordination with lead
and cooperating agencies, and FIN review. If the project is determined
not to be a covered project, the $5,000 portion of the initiation fee
would not be refunded and the $195,000 would not be assessed. We
determined that 10 business days was an appropriate balance of
providing sponsors with sufficient time to prepare the necessary funds
and wanting to start providing FPISC-OED services as soon as possible.
That being said, we solicit public comment on whether we should
consider a different period of time.
In the future, we may need to adjust the amount of the initiation
fee based on changes to program costs and the number of new FINs
received. Section 1900.3(b) sets out the mechanism by which the
Permitting Council would be able to change the fee. The fee being set
in this regulation is based, in part, on the fact that in fiscal year
(FY) 2017 FPISC-OED supported 35 covered projects. In the next few
years, FPISC-OED anticipates additional projects becoming covered at
the beginning of or in the early stages of project implementation. As a
result, more coordination may be necessary between FPISC-OED, the
Permitting Council agencies, and project sponsors. In addition, FPISC-
OED's costs are anticipated to increase based on the number of projects
that are accepted as covered projects as a greater number of projects
will require additional staff for support. If necessary, FPISC-OED
would adjust the fee by developing an average hourly rate for
government staff using the number of full time employees multiplied by
the salary of each employee (based on the General Schedule
classification and pay system), which also includes overhead and
operational costs. For contractor support costs, FPISC-OED would use
total contract costs divided by full time employees to develop an
average hourly rate that also includes salary, overhead, and
operational costs. A change in the initiation fee would not change the
non-refundable portion of the fee, only the portion due at the time the
project was determined to be a covered project under FAST-41. The
regulation would require FPISC to publish the new amount of the
initiation fee in the Federal Register before it can take effect. We
seek comment on the methodology for calculating the new initiation fee
and whether changes to the initiation fee should be made through
notification in the Federal Register or whether we should take comment
before a revised initiation fee takes effect.
In proposed section 1900.3(c), any Indian tribe proposing covered
projects on trust property are exempted from paying the initiation fee.
This is consistent with the trust relationship as well as the
government-to-government relationship between the Federal Government
and federally-recognized Indian tribes, and will enable FPISC-OED to
provide services, without
[[Page 44849]]
additional cost to tribal governments, in order to protect trust assets
held for the benefit of Indian tribes.
In addition to Indian tribes, the fee structure allows the
Permitting Council to exempt other parties for which the fee would
impose an undue financial burden or is otherwise determined to be
inappropriate. Therefore, on a case-by-case basis, FPISC-OED would
grant exemptions, in whole or in part, to project sponsors
demonstrating that the fee would impose undue financial burden or was
otherwise inappropriate. A petition for an exemption would require
sufficient supporting evidence to demonstrate that the fee would be
economically burdensome or inappropriate. FPISC-OED would consider the
following factors in making an exemption determination:
(a) The nature and cost of the infrastructure project;
(b) The financial impact of the fee on the project sponsor;
(c) The financial resources of the project sponsor; and
(d) The type of operations of the project sponsor.
In proposed section 1900.3(d), the Executive Director would review
a project sponsor's petition for an exemption and based on the factors
listed above and would either approve or deny the petition for
exemption. We are proposing the Executive Director have 30 days to
review the petition for exemption and make a written determination.
Once a determination is made, the Executive Director will transmit the
written determination, including a statement of reasons, to the project
sponsor. This proposal solicits public comment on the specific
exemptions it is proposing and on the conditions by which it would
review such exemptions.
In proposed section 1900.3(e), as allowed by FAST-41, the
initiation fee would be used by FPISC-OED to cover its costs in
implementing the requirements and authorities of 42 U.S.C. 4370m-1 and
4370m-2 and the operational costs of FPISC-OED (42 U.S.C. 4370m-8(a)).
For example, activities undertaken by FPISC-OED that may be covered by
the initiation fee could include, without being limited to, pre-
coordination with project sponsors; pre-coordination with lead and
cooperating agencies; FIN review; maintenance and enhancements of the
Permitting Dashboard including operations, security, and the
development and provision of training; outreach to stakeholders through
conferences and meetings; producing handouts, flyers, and information
materials for project sponsors related to FAST-41; developing
recommended performance schedules including intermediate and final
completion dates for environmental reviews and authorizations;
assisting with development of coordinated project plans (CPPs);
reviewing and approving any modifications of more than 30 days to the
permitting schedule of covered projects; mediating disputes between
projects sponsors and relevant agencies related to the permitting
timetable; assessing Permitting Council agency updates to the CPPs and
Permitting Dashboard; tracking compliance with permitting timetable
dates; writing reports and implementation guidance; writing standard
operating procedures; and conducting Permitting Council, Chief
Environmental Review and Permitting Officer (CERPO), and Permitting
Council Working Group meetings. The initiation fee would also cover
FPISC-OED's costs of operations including, but not limited to, staffing
and personnel, office space and equipment, and program support
contracts. The proposed initiation fee would have no impact on fee
requirements of other Federal agencies under their existing processes
and is not intended to be allotted to Permitting Council agencies to
facilitate their reviews and/or participation in the FAST-41 process.
In proposed section 1900.3(f), we would ensure that all initiation
fees collected were deposited into the Environmental Review and
Improvement Fund as required by FAST-41 (42 U.S.C. 4370m-8(d)(1)).
Amounts collected under the initiation fee final rule would be
available to the Permitting Council Executive Director, without
appropriation or fiscal year limitation, for the purpose of
administering FAST-41 and operating the FPISC-OED (42 U.S.C. 4370m-
8(d)(2)). The use of funds accepted under this fee structure shall not
impact impartial decision-making with respect to environmental reviews
or authorizations, either substantively or procedurally, because FPISC-
OED does not have any authority in the decision-making with respect to
environmental reviews and authorizations (42 U.S.C. 4370m-8(e)). FPISC-
OED ensures enhanced coordination, visibility, predictability, and
accountability in the environmental review and authorization process.
The outcome of the environmental review and authorization process
remains with the lead, cooperating, and participating agencies, as
applicable, that conduct and issue environmental reviews and
authorizations.
B. Economic Impacts
i. Benefits of the Initiation Fee to Project Sponsors of Covered
Projects
In considering the potential impacts of the proposed rule, we
anticipate that there will be no change in potential benefits
associated with this rule. Benefits are not quantified in this
analysis. However, the proposed rule is associated with benefits in
that it allows for the continuation of the FPISC-OED's services. An
initiation fee is necessary because as an oversight council, FPISC-OED
is responsible for implementing the provisions of FAST-41 by
facilitating and institutionalizing the transparency, accountability,
and coordination among Federal agencies related to the Federal
environmental review and authorization process. The fee allows FPISC-
OED to carry out its obligations to improve the infrastructure
permitting process. Specifically, an initiation fee would allow FPISC
to continue to produce the following benefits for projects covered
under FAST-41:
Enhanced coordination: When a proposed project becomes a
covered project under FAST-41, the lead or facilitating agency, as
applicable, must identify all agencies and governmental entities likely
to have financing, environmental reviews, authorizations, or other
responsibilities with respect to the covered project, and invite all
Federal agencies to become participating or cooperating agencies (42
U.S.C. 4370m-2(a)(2)(A)(ii)). The lead or facilitating agency, as
applicable, in consultation with each coordinating and participating
agency, shall establish a project-specific CPP for coordinating public
and agency participation in, and completion of, any required Federal
environmental review and authorization for the project (42 U.S.C.
4370m-2(c)(1)(A)). Advanced coordination has been known to help improve
the efficiency of reviews by allowing early communication of project
goals and discussion of potential alternatives with permitting agencies
and stakeholders which can lead to environmental reviews and
authorizations being completed earlier by identifying and addressing
potential causes of delay earlier in the process.
Enhanced visibility and predictability: The lead agency,
within a CPP, will develop a permitting timetable for each covered
project, which establishes scheduled dates for all required Federal
environmental reviews and authorizations (as well as for State permits
and environmental reviews when the State elects to participate in the
FAST-41 process) based on project-
[[Page 44850]]
specific factors, statutory and regulatory requirements, and historical
timeframes for the activities. Scheduled and actual timeframes for
government processes will be publicly displayed and tracked on the
online Permitting Dashboard. If an environmental review or
authorization is delayed, the lead, cooperating, or participating
agency is required to update the schedule at least 30 days before the
currently reported completion date and the agency will not be allowed
to extend the final completion date by more than 30 days without
consulting with the project sponsor. The enhanced visibility and
predictability leads to greater accountability by Federal agencies. As
discussed in the FAST-41 Implementation Guidance, environmental review
and authorization schedules for independent regulatory commissions are
not subject to review and oversight by project sponsors or other
government offices.
Enhanced accountability: Covered projects benefit from
high-level oversight on the permitting process from the Executive
Director to ensure that Federal agencies follow FAST-41 processes and
adhere to established timeframes. If the lead, participating, or
cooperating agencies delay the permitting process by more than 150
percent of the original schedule, it must be reported to Congress (42
U.S.C. 4370m-2(c)(2)(D)(iii)).
Enhanced public participation: Specific timeframes have
been developed for certain public participation activities, including
early coordination for collection of key concerns, public involvement
in the development of reasonable alternatives, and public comment
periods on draft Environmental Impact Statements (EISs). For example,
the lead agency must establish a comment period for draft EISs to be
between 45 days and 60 days unless the lead agency, project sponsor,
and any cooperating agency agree to a longer deadline or the lead
agency, in consultation with each cooperating agency, extends the
deadline for good cause (42 U.S.C. 4370m-4(d)(1)).
Enhanced legal protections: The statute of limitations to
challenge any Federal authorizations for covered projects is reduced
from 6 years to 2 years from the date the authorization is issued by
the agency, and future claims pertaining to a Federal environmental
review may be brought only if the commenter filed a sufficiently
detailed comment and put the lead agency on notice of the issue during
the environmental review process. Persons who did not submit comments
on the environmental review would not have any standing to challenge
the authorization for a covered project (42 U.S.C. 4370m-6(a)).
ii. Costs of the Initiation Fee to Project Sponsors of Covered Projects
We evaluated potential costs and transfer provisions associated
with this rulemaking. Cost provisions include consideration of time
associated with rule familiarization for stakeholders and time required
to complete the FIN. We concluded that the proposed rule would result
in a 10-year total cost of $20,637 undiscounted, $18,290 discounted at
3 percent, and $15,847 discounted at 7 percent. The transfer provision
accounts for the non-refundable portion of the initiation fee for all
FINs as well as the additional fee required from successful project
sponsors. We determined that over a 10-year period, the proposed rule
would transfer funds from project sponsors to FPISC totaling
$78,692,000 undiscounted, $67,963,353 discounted at 3 percent, and
$56,794,754 discounted at 7 percent. The costs of the fee are described
in greater detail in section IV.A.ii below.
iii. Determination of Amount of Initiation Fee
The initiation fee amount was determined based on an analysis of
current and projected FPISC-OED expenditures, a review of the existing
portfolio of covered projects, and estimates of the number of new
covered projects that will be added in future years. In FY 2017, FPISC-
OED had expenditures of approximately $4.75 million and supported 35
projects on the Permitting Dashboard. Of those 35 covered projects, 25
were still in progress while 10 were listed as ``Complete'' at the end
of FY 2017. Based on this data, we estimate the FY 2017 cost per FAST-
41 covered project was approximately $190,000 ($4.75M/25 covered
projects still in progress).
It is important to note that most of the initial set of 35 covered
projects were existing projects that were already far along in the
environmental review and authorization process when FAST-41 was
enacted. As new projects are added, we anticipate additional support
and coordination will be needed for newly designated covered projects
that are in the early stages of development or the environmental review
and authorization process. This enhanced level of support includes
early coordination and stakeholder outreach, assisting in the
development of CPPs and permitting timetables for the entire permitting
process, consulting and facilitating throughout the Federal
environmental review and authorization process, and monitoring and
assessing Federal agency performance in meeting Federal permitting
timetable goals. We estimated that the proposed $200,000 initiation fee
per project for project sponsors is sufficient for FPISC-OED to fully
carry out its responsibilities under FAST-41, including the additional
level of support and coordination needed for newly designated covered
projects.
At the beginning of FY 2018, FPISC-OED was overseeing 37 covered
projects. Based on estimates of the number of projects that would be
completed each year and the number of new covered projects each year,
we estimate that FPISC-OED will support 24 new covered projects in FY
2019; 26 new covered projects in FY 2020; 33 new covered projects in FY
2021; 41 new covered projects in FY 2022; and 48 new covered projects
each year in FY 2023-2028. Therefore, the annual fee collected would
range from $4.80 million in FY 2019 to $9.60 million by FY 2023. This
estimate comes from the anticipated increase in visibility of the
program from projects successfully going through the FAST-41 process.
In addition, we anticipate that by FY 2023 the number of new projects
will stay steady at 48 new projects a year because there are a limited
number of projects in the country that would be eligible to be covered
under FAST-41. Furthermore, FPISC-OED anticipates not all eligible
projects will apply to become covered projects.
The analysis assumes a 5 percent charge to provide a reserve fund
for the program. OMB established Circular A-25 (User Charges), which
promulgated Federal policy regarding the self-sufficiency of all
projects.\1\ A central goal of OMB Circular A-25 guidelines is to
efficiently allocate government resources by at least fully recouping
all costs associated with providing the good or service. OMB Circular
A-25 guidelines state that all recipients of special benefits from
Federal activities will be assessed a fee for services beyond those
received by the general public. If existing laws restrict such a fee,
agencies will review activities periodically and recommend legislative
changes as appropriate. User fees will be collected in advance or at
the time of the provision of service. When possible, agencies should
set charges as rates rather than fixed amounts. Both direct and
indirect costs will be included in
[[Page 44851]]
the calculation of total costs, including salaries and fringe benefits,
travel, general overhead, consulting fees, and insurance, among other
cost elements.
---------------------------------------------------------------------------
\1\ The guidelines were issued under the authority granted by
Title V of the Independent Offices Appropriations Act of 1952 (31
U.S.C. 1111) and Executive Orders No. 8248 and 11541. Available at
https://www.whitehouse.gov/wp-content/uploads/2017/11/Circular-025.pdf.
---------------------------------------------------------------------------
Public demand for such services varies from year to year. This
variation creates challenges because agencies seek to recover the costs
of managing programs and the associated services provided to
recipients. For this reason, many agencies maintain reserve funds to
ensure that sufficient agency funding is available for the continued
operation of the agency. In Federal User Fees: A Design Guide, the
Government Accountability Office (GAO) recommended that maintaining
reserve funds can help hedge against sudden or temporary fluctuations
in demand and the corresponding costs of operations.\2\ As such, we
included a reserve fund fee to provide program stability year to year.
---------------------------------------------------------------------------
\2\ Federal User Fees: A Design Guide, GAO-08-386SP, May 2008.
Available at: https://www.gao.gov/new.items/d08386sp.pdf.
---------------------------------------------------------------------------
The proposed initiation fee would not apply to covered projects
that were already identified under FAST-41 and posted to the Permitting
Dashboard prior to the effective date of this rule. The effective date
would be one day after publication of the final rule. We propose the
effective date because it estimates that project sponsors would take
only 2.5 hours to familiarize themselves with the rule, complete the
FIN, and ensure that their accounting system(s) can transfer the
appropriate initiation fee with the FIN. For FY 2019 and beyond, we may
reassess the amount of the initiation fee based on early program
implementation experience and the number of FINs submitted by project
sponsors for proposed covered projects, and to adequately cover the
reasonable costs of FPISC-OED.
In addition, FAST-41 places a limit on the fee structure that
requires the fee to ``be established in a manner that ensures that the
aggregate amount of fees collected for a fiscal year is estimated not
to exceed 20 percent of the total estimated costs for the fiscal year
for the resources allocated for the conduct of environmental reviews
and authorizations covered by this subchapter, as determined by the
Director of the Office of Management and Budget'' (42 U.S.C. 4370m-
8(c)(3)). Therefore, the total estimated costs for the fiscal year for
the conduct of environmental reviews and authorizations covered by the
subchapter was calculated by adding the cost for all environmental
reviews under the National Environmental Policy Act (NEPA), all
authorizations \3\ for projects that likely would have been covered
under FAST-41, and FPISC-OED costs. Based on CEQ estimates on the
average costs of completing EISs ($250,000 to $2 million) and the
number of final EISs (FEISs) that were published (162), the cost for
environmental reviews under NEPA was estimated to be approximately
$182.25 million in FY 2014.\4\
---------------------------------------------------------------------------
\3\ As defined in 42 U.S.C. 4370m(3) authorizations ``means any
license, permit, approval, finding, determination, or other
administrative decision issued by an agency that is required or
authorized under Federal law in order to site, construct,
reconstruct, or commence operations of a covered project
administered by a Federal agency or, in the case of a State that
chooses to participate in the environmental review and authorization
process in accordance with [42 U.S.C. 4370m-2(c)(3)(A)], a State
agency.''
\4\ The NEPA Task Force Report to Council on Environmental
Quality: Modernizing NEPA Implementation (Sept. 2003) at pp. 65-66.
---------------------------------------------------------------------------
Environmental reviews costs (low range): Number of FEISs
Published in FY 2014 * Low Range for Average Cost of EIS = 162 *
$250,000 = $40.5 million
Environmental reviews costs (high range): Number of FEISs
Published in FY 2014 * High Range for Average Cost of EIS = 162 * $2
million = $324 million
Average cost: (High range + Low rage)/2 = ($40.5 million +
$324 million)/2 = $182.25 million
The data for the cost of authorizations for covered projects under
FAST-41 is derived from an OMB data call to the Department of
Agriculture, the Department of Commerce, the Department of Defense, the
Department of Energy, the Department of Homeland Security, the
Department of Housing and Urban Development, the Department of the
Interior, the Department of Transportation, the Environmental
Protection Agency, the Advisory Council on Historic Preservation, and
the U.S. Army Corps of Engineers on August 19, 2014 regarding agencies'
budgets for infrastructure permitting and review and other existing
agency authorities for financing infrastructure permitting activities.
The data collected from agencies is current as of August 17, 2015. The
average cost in FY 2014 for authorizations for projects that likely
would have been covered under FAST-41 was estimated to be approximately
$106.33 million. In addition, the costs for FPISC-OED in FY 2017 were
$4.75 million. FY 2017 numbers were used to estimate FPISC-OED costs
since the office was not in existence in FY 2014. Therefore, the
aggregate amount of fees collected for a fiscal year could not exceed
$58.67 million (20 percent of $293.33 million). We estimate that FPISC-
OED will have 24 new projects in FY 2019 and by FY 2023 there will be
48 new projects. Therefore, in FY 2019 the aggregate amount of fees
collected by FPISC-OED would be $4.80 million ($200,000 * 24 new
projects) and by FY 2023 the aggregate amount of fees collected by
FPISC-OED would be $9.60 million ($200,000 * 48 new projects). Thus,
the aggregate amount of fees would be far less than the 20 percent
limit of $58.67 million. We request comments on the calculation of the
proposed initiation fee and proposed calculation of future initiation
fees.
C. Issues on Which the Permitting Council Seeks Comment
Although we welcome comment on any aspect of this proposal, FPISC
is particularly interested in receiving comments and views of
interested parties concerning the following issues:
1. Initiation Fee Non-Refundable and Due in Two Parts: The proposal
to have the initiation fee be non-refundable and paid in two parts--
$5,000 of the fee at the time the project sponsor submits the FIN, and
then $195,000 within 10 business days of the Federal facilitating or
lead agency's determination, the Executive Director's final
determination, or the Council's opinion that the project is a covered
project under FAST-41.
2. Calculation of Initiation Fee: The methodology and assumptions
of the calculation of the initiation fee as discussed in III.B.iii.
3. Exclusions: The exclusions to the initiation fee as discussed in
section III.A.iii.
D. Public Participation
We will accept comments, data, and information regarding this
proposed rule no later than the date provided in the DATES section.
Interested parties may submit comments using any of the methods
described in the ADDRESSES section.
1. Submitting Comments via Regulations.gov: The regulations.gov web
page will require you to provide your name and contact information.
Your contact information will be viewable to FPISC-OED and GSA staff
only. Your contact information will not be publicly viewable except for
your first and last names, organization name (if any), and submitter
representative name (if any). If your comment is not processed properly
because of technical difficulties, FPISC-OED and GSA will use this
information to contact you. If FPISC-OED and GSA cannot read your
comment due to technical difficulties and cannot contact you for
clarification,
[[Page 44852]]
we may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment or in any documents attached to your comment.
Any information that you do not want to be publicly viewable should not
be included in your comment, nor in any document attached to your
comment. Persons viewing comments will see only first and last names,
organization names, correspondence containing comments, and any
documents submitted with the comments.
Do not submit to regulations.gov information for which disclosure
is restricted by statute, such as trade secrets and commercial or
financial information (hereinafter referred to as Confidential Business
Information (CBI)). Comments submitted through regulations.gov cannot
be claimed as CBI. Comments received through the website will waive any
CBI claims for the information submitted. For information on submitting
CBI, see the Confidential Business Information section below.
FPISC-OED and GSA processes submissions made through
regulations.gov before posting. Normally, comments will be posted
within a few days of being submitted. However, if large volumes of
comments are being processed simultaneously, your comment may not be
viewable for up to several weeks. Please keep the comment tracking
number that regulations.gov provides after you have successfully
uploaded your comment.
2. Submitting Comments via Email or Mail: Comments and documents
submitted via email, hand delivery, or mail also will be posted to
regulations.gov. If you do not want your personal contact information
to be publicly viewable, do not include it in your comment or any
accompanying documents. Instead, provide your contact information on a
cover letter. Include your first and last names, email address,
telephone number, and optional mailing address. The cover letter will
not be publicly viewable as long as it does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to FPISC-OED and GSA. Email
submissions are preferred. If you submit via mail or hand delivery,
please provide all items on a CD, if feasible. It is not necessary to
submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted electronically
should be provided in PDF (preferred), Microsoft Word, or Excel file
format. Provide documents that are not secured, written in English, and
are free of any defects or viruses. Documents should not contain
special characters or any form of encryption and, if possible, they
should carry the electronic signature of the author.
(a) Campaign Form Letters: Please submit campaign form letters by
the originating organization in batches of between 50 to 500 form
letters per PDF or as one form letter with a list of supporters' names
compiled into one or more PDFs. This reduces comment processing and
posting time.
(b) Confidential Business Information: Any person submitting
information that he or she believes to be confidential and exempt by
law from public disclosure should submit via email, postal mail, or
hand delivery two well-marked copies: one copy of the document marked
confidential including all the information believed to be confidential,
and one copy of the document marked non-confidential with the
information believed to be confidential deleted. Submit these documents
via email or on a CD, if feasible. We will make our own determination
about the confidential status of the information and treat it according
to its determination.
Factors of interest to us when evaluating requests to treat
submitted information as confidential include: (1) A description of the
items, (2) whether and why such items are customarily treated as
confidential within the industry, (3) whether the information is
generally known by or available from other sources, (4) whether the
information has previously been made available to others without
obligation concerning its confidentiality, (5) an explanation of the
competitive injury to the submitting person which would result from
public disclosure, (6) when such information might lose its
confidential character due to the passage of time, and (7) why
disclosure of the information would be contrary to the public interest.
It is our policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
E. Docket
The docket is available for review at https://www.regulations.gov
and includes Federal Register notices, public comments, and other
supporting documents and materials. All documents in the docket are
listed in the regulations.gov index. However, not all documents listed
in the index may be publicly available, such as information that is
exempt from public disclosure. A link to the docket web page can be
found at: https://www.permits.performance.gov/tools/notice-proposed-rule-making-permitting-council-fast-41-initiation-user-fee. This web
page contains a link to the docket for this proposed rule on the
regulations.gov site. The regulations.gov web page also contains
instructions on how to access all documents, including public comments,
in the docket.
IV. Regulatory Review
A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
This rule is a ``significant regulatory action'' under Executive
Order 12866 so it was submitted to OMB for review.
We evaluated the potential costs and benefits that could result
from this rulemaking. As presented in Table 1, we estimate that the
proposed rule would result in a 10-year total cost of $20,637
undiscounted, $18,290 discounted at 3 percent, and $15,847 discounted
at 7 percent. On an annualized basis, the proposed rule would result in
a cost of $2,064 undiscounted, $2,144 discounted at 3 percent, and
$2,256 discounted at 7 percent. The transfer provision accounts for the
non-refundable portion of the initiation fee for all FINs as well as
the additional fee required from successful project sponsors. We
determined that over a 10-year period, the proposed rule will tranfer
funds from project sponsors to FPISC-OED totaling $78.692 million
undiscounted, $67.963 million discounted at 3 percent, and $56.795
million discounted at 7 percent. On an annualized basis, the transfer
provision amounts to $7.869 million undiscounted, $7.967 million
discounted at 3 percent, and $8.086 million discounted at 7 percent.
Although we were unable to quantify benefits directly attributable to
the fee, we do understand that there are significant benefits from
FPISC-OED's services and the fee will allow the program to continue in
future years. We invite comments from the public on how to estimate
these benefits.
i. Scope and Key Inputs to the Analysis
We estimated that rule familiarization would occur only during the
first year of the analysis period and would require familiarization by
a manager and by an environmental engineer. When determining the
initiation fee, we assumed there would be 48 projects
[[Page 44853]]
whose sponsors would submit FINs each year. While we expect the program
to reach this level over time, fewer than 48 FINs are expected for the
first few years as the program ramps up and expands. For the purposes
of this analysis, we estimate that 24 FINs will be received from
project sponsors in FY 2019, 26 FINs will be received in FY 2020, 33
FINs will be received in FY 2021, 41 FINs will be received in FY 2022,
and 48 FINs will be received each year in FY 2023 through FY 2028.
We evaluated changes in the opportunity cost of time for project
sponsors and other stakeholders using wage rates to represent the value
of managers' or engineers' time that, in the absence of the rule, would
not have been spent on rule familiarization or completing FINs to
gather fee amounts. This analysis uses wage rates for General and
Operations Managers (occupation code 11-1021) in the Utilities sector
(North American Industry Classification System code 22) as well as wage
rates for Environmental Engineers (occupation code 17-2081) in the
Utilities sector (NAICS code 22). The source for wages is the median
hourly wage data (May 2016) from the U.S. Department of Labor (DOL),
Bureau of Labor Statistics (BLS), Occupational Employment Statistics
(OES).\5\ The BLS does not publish data on fringe benefits for specific
occupations, but it does for the broad industry groups in its Employer
Costs for Employee Compensation (ECEC) release. This analysis uses an
hourly wage of $58.16 for managers and an hourly wage of $41.10 for
environmental engineers. For private industry, benefits account for
30.4 percent of employer costs,\6\ while the remaining 69.6 percent of
employer costs are directed towards salary. Therefore, we applied a
loaded wage rate factor of 1.44 to account for total costs to employers
(inclusive of benefits) when calculating cost associated with rule
familiarization and application completion (1.44 = 1 + 30.9/69.6).
---------------------------------------------------------------------------
\5\ U.S. Department of Labor (DOL), Bureau of Labor Statistics
(BLS). Occupational Employment Statistics (OES). National Industry-
Specific Occupational Employment and Wage Estimates. May 2016.
Available at: https://www.bls.gov/oes/current/naics2_22.htm#11-0000
(accessed February 8, 2018).
\6\ U.S. Department of Labor, Bureau of Labor Statistics (BLS).
Employer Costs for Employee Compensation--September 2017. December
15, 2017. https://www.bls.gov/news.release/pdf/ecec.pdf (accessed
February 16, 2018).
---------------------------------------------------------------------------
ii. Costs
Rule familiarization is expected to require one hour of a manager's
time and one hour of an environmental engineer's time for each project
sponsor or other interested stakeholder. Because 24 FINs are expected
in FY 2019, and because rule familiarization only takes place in FY
2019, the proposed rule will require a total of 24 hours of managers'
time and 24 hours of environmental engineers' time at the appropriate
wage rates (as discussed in the ``Scope and Key Inputs to the
Analysis'' section of this proposed rule). Therefore, over the 10-year
analysis period, the only costs associated with rule familiarization
occur in FY 2019 and amount to $3,423 (24 projects x (1 hour of time
required for manager's familiarization x $58.16 wage for manager x 1.44
loaded wage rate factor) + (1 hour of time required for environmental
engineer's familiarization x $41.10 wage for environmental engineer x
1.44 loaded wage rate factor)).
There are also costs associated with the additional time required
for project sponsors to complete the FIN as a result of the changes
introduced by this proposed rule, namely gathering an initiation fee.
We estimate that program sponsors in each year will require 0.5 hours
of a manager's time at the appropriate wage rate (as discussed in the
``Scope and Key Inputs to the Analysis'' section of this proposed rule)
as a result of the new FIN elements. We expect the number of FINs to
reach 48 by FY 2023, but expect fewer than 48 FINs each year between FY
2019 and FY 2022. The 10-year total undiscounted cost of time
associated with FIN completion is $17,214. This is calculated by
multiplying the 0.5 hours of managers' time by the associated wage rate
(including accounting for the loaded wage rate factor) to get $41.78 (=
0.5 x 1.44 x $58.16), then multiplying this amount by the number of
FINs expected in each year. For the purposes of this analysis, we
estimate that 24 FINs will be received from project sponsors in FY
2019, 26 FINs will be received in FY2020, 33 FINs will be received in
FY 2021, 41 FINs will be received in FY 2022, and 48 FINs will be
received each year in FY 2023 through FY 2028. The total cost across
all years is $17,214.
Table 1 of this proposed rule shows the combined costs of rule
familiarization and FIN completion. As presented in Table 1, the
proposed rule would result in a 10-year total cost of $20,637
undiscounted, $18,290 discounted at 3 percent, and $15,847 discounted
at 7 percent. On an annualized basis, the proposed rule would result in
an undiscounted cost of $2,064, $2,144 discounted at 3 percent, and
$2,256 discounted at 7 percent. Rule famliarization costs are assumed
to occur only in FY 2019, and therefore are not discounted at either 3
percent or 7 percent. Costs associated with FIN completion occur each
year and are discounted.
Table 1--Summary of the Total Costs of the Proposed Rule
[2016$]
----------------------------------------------------------------------------------------------------------------
Discounted
Rule Total costs -------------------------------
Year familiarization FIN completion \(a)\ Discounted at Discounted at
3% 7%
----------------------------------------------------------------------------------------------------------------
2018.......................... $3,423 $1,003 $4,426 $4,426 $4,426
2019.......................... N/A 1,086 1,086 1,055 1,015
2020.......................... N/A 1,379 1,379 1,300 1,204
2021.......................... N/A 1,713 1,713 1,568 1,398
2022.......................... N/A 2,006 2,006 1,782 1,530
2023.......................... N/A 2,006 2,006 1,782 1,530
2024.......................... N/A 2,006 2,006 1,782 1,530
2025.......................... N/A 2,006 2,006 1,782 1,530
2026.......................... N/A 2,006 2,006 1,782 1,530
2027.......................... N/A 2,006 2,006 1,782 1,530
---------------------------------------------------------------------------------
Total..................... 3,423 17,214 20,637 18,290 15,847
Annualized.................... ................ .............. 2,064 2,144 2,256
----------------------------------------------------------------------------------------------------------------
Notes: \(a)\ Total cost values may not equal the sum of the components due to rounding.
[[Page 44854]]
iii. Benefits
In considering the potential impacts of the proposed rule, we
anticipate that there will be no change in potential benefits
associated with this rule. Benefits are not quantified in this
analysis. However, the proposed rule is associated with benefits in
that it allows for the continuation of the FPISC-OED's services. An
initiation fee is necessary because as an oversight council, FPISC-OED
is responsible for implementing the provisions of FAST-41 by
facilitating and institutionalizing the transparency, accountability,
and coordination among Federal agencies related to the Federal
environmental review and authorization process. The fee allows FPISC-
OED to carry out its obligations to improve the infrastructure
permitting process. Specifically, an initiation fee would allow FPISC
to continue to produce the following benefits for projects found to be
``covered'' under FAST-41:
Enhanced coordination: When a proposed project becomes a
covered project under FAST-41, the lead or facilitating agency, as
applicable, must identify all agencies and governmental entities likely
to have financing, environmental reviews, authorizations, or other
responsibilities with respect to the covered project, and invite all
Federal agencies to become participating or cooperating agencies (42
U.S.C. 4370m-2(a)(2)(A)(ii)). The lead or facilitating agency, as
applicable, in consultation with each coordinating and participating
agency, shall establish a project-specific CPP for coordinating public
and agency participation in, and completion of, any required Federal
environmental review and authorization for the project (42 U.S.C.
4370m-2(c)(1)(A)). Advanced coordination has been known to help improve
the efficiency of reviews by allowing early communication of project
goals and discussion of potential alternatives with permitting agencies
and stakeholders which can lead to environmental reviews and
authorizations being completed earlier by identifying and addressing
potential causes of delay earlier in the process.
Enhanced visibility and predictability: The lead agency,
within a CPP, will develop a permitting timetable for each covered
project, which establishes scheduled dates for all required Federal
environmental reviews and authorizations (as well as for State permits
and environmental reviews when the State elects to participate in the
FAST-41 process) based on project-specific factors, statutory and
regulatory requirements, and historical timeframes for the activities.
Scheduled and actual timeframes for government processes will be
publicly displayed and tracked on the online Permitting Dashboard. If
an environmental review or authorization is delayed, the lead,
cooperating, or participating agency is required to update the schedule
at least 30 days before the currently reported completion date and the
agency will not be allowed to extend the final completion date by more
than 30 days without consulting with the project sponsor. The enhanced
visibility and predictability leads to greater accountability by
Federal agencies. As discussed in the FAST-41 Implementation Guidance,
environmental review and authorization schedules for independent
regulatory commissions are not subject to review and oversight by
project sponsors or other government offices.
Enhanced accountability: Covered projects benefit from
high-level oversight on the permitting process from the Executive
Director to ensure that Federal agencies follow FAST-41 processes and
adhere to established timeframes. If the lead, participating or
cooperating agencies delay the permitting process by more than 150
percent of the original schedule, it must be reported to Congress (42
U.S.C. 4370m-2(c)(2)(D)(iii)).
Enhanced public participation: Specific timeframes have
been developed for certain public participation activities, including
early coordination for collection of key concerns, public involvement
in the development of reasonable alternatives, and public comment
periods on draft EISs. For example, the lead agency must establish a
comment period for draft EISs to be between 45 days and 60 days unless
the lead agency, project sponsor, and any cooperating agency agree to a
longer deadline or the lead agency, in consultation with each
cooperating agency, extends the deadline for good cause (42 U.S.C.
4370m-4(d)(i)).
Enhanced legal protections: The statute of limitations to
challenge any Federal authorizations for covered projects is reduced
from 6 years to 2 years from the date the authorization is issued by
the agency, and future claims pertaining to a Federal environmental
review may be brought only if the commenter filed a sufficiently
detailed comment and put the lead agency on notice of the issue during
the environmental review process. Persons who did not submit comments
on the environmental review would not have any standing to challenge
the authorization for a covered project (42 U.S.C. 4370m-6(a)).
B. Paperwork Reduction Act
This rulemaking does not include any information collection
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis (IRFA) for
any rule that by law must be proposed for public comment, unless the
agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
This proposed rule establishes a user fee for voluntary use of
Permitting Council services for the purposes of streamlining Federal
environmental reviews and authorizations for covered infrastructure
projects. Entities may still receive Federal environmental reviews and
authorizations without the use of Permitting Council services.
This proposed rule may affect up to several dozen entities at any
given time. Based on the current list of 37 covered projects in NAICS
codes 2211 (Electric power generation, transmission and distribution)
and 2212 (Natural gas distribution), approximately one third count as
small entities according to Small Business Administration (SBA) size
standards. Therefore, this rule will have an impact on a substantial
number of small entities. However, this rule will not have a
significant economic impact on those entities. The costs of the rule
occur across two categories (rule familiarization and application
completion) and at most, have an impact of $185 per firm ($143 for rule
familiarization and $42 for application completion). The standard
threshold for a significant economic impact is considered 1 percent of
a firm's revenue. Of the 37 current covered projects, no project
sponsor has revenue less than $42 million.\7\ With rule costs of $185,
these only account for less than 0.0004 percent of revenue (= 185/
42,000,000). Even when considering the fee amount of $200,000, the rule
only accounts for 0.5 percent of revenue. No current or future entity
in these NAICS codes likely has revenues such that this amount would
constitute an undue burden and furthermore, participation in this
program is voluntary and no firm is required to pay the fee discussed
in this proposed rulemaking in order to receive a Federal environmental
review or authorization (although other fees may apply based on
specific
[[Page 44855]]
environmental review or authorization and agency requirements).
---------------------------------------------------------------------------
\7\ Revenue estimates were gathered from publicly available
revenue data or project sponsor annual reports.
---------------------------------------------------------------------------
For the reasons stated above, we certify that this proposed rule,
if promulgated, will not have a significant economic impact on a
substantial number of small entities. Therefore, the Regulatory
Flexibility Act, as amended, does not require us to prepare a
regulatory flexibility analysis.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (URMA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector (Pub. L. 104-4, sec. 201 (codified at 2 U.S.C. 1531)).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy (2
U.S.C. 1532(a) and (b)). The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. This proposed rule
does not contain a Federal intergovernmental or private sector mandate,
as those terms are defined in UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, ``Federalism,'' published at 64 FR 43255, on
August 4, 1999, imposes certain requirements on agencies formulating
and implementing policies and regulations that preempt State law or
that have federalism implications. The Executive Order requires
agencies to examine the constitutional and statutory authority
supporting any action that would limit the policymaking discretion of
the states and then carefully assess the necessity for such actions.
The Executive Order also requires agencies to have a process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
We examined this proposed rule and have determined that, if
promulgated, it will not pre-empt State law. This action impacts
project sponsors of FAST-41 covered projects. Accordingly, no further
action is required by Executive Order 13132.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, ``Consultation and Coordination with Indian
Tribal Governments,'' published at 65 FR 67249, on Nov. 9, 2000,
reaffirms the Federal government's commitment to tribal sovereignty,
self-determination, and self-government. Its purpose is to ensure that
all agencies consult with the Indian tribes and respect tribal
sovereignty as they develop policy on issues that impact Indian
communities. This proposed rule will allow a tribal government, or a
consortium of tribal governments, to apply as project sponsors for an
infrastructure project to become a FAST-41 covered project, and covered
projects may be implemented on tribal lands. In addition, a tribal
government or a consortium of tribal governments may be asked by a lead
agency to become a cooperating or participating agency on a FAST-41
covered project. On November 30, 2017, the Executive Director of the
Permitting Council sent letters to 567 federally-recognized tribes
requesting consultation on this proposed rule. The Muscogee (CREEK)
Nation provided a comment that requested an automatic exemption from
the initiation fee for tribal governments proposing projects on trust
property under FAST-41.
The United States government has specific responsibilities to each
Tribe based on treaties, statutes, or other sources. Consistent with
these responsibilities, the trust relationship, and the government-to-
government relationship between the Federal government and federally-
recognized tribes, the Federal government often provides services to
tribes relating to the protection of trust assets at no cost.
Therefore, the proposed rule includes an exemption for tribal grants
proposing projects on trust property under FAST-41.
G. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' published
at 66 FR 28355 on May 22, 2001, requires Federal agencies to prepare
and submit to OMB's Office of Information and Regulatory Affairs (OIRA)
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgates or is expected to lead to promulgation of a
final rule or regulation, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (3) is designated by the
Administrator of OIRA as a significant energy action. For any proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
We have preliminarily concluded that this regulatory action is not
a ``significant energy action'' because the proposed rulemaking is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy, nor has it been designated as such by
the Administrator at OIRA. Accordingly, we have not prepared a
Statement of Energy Effects for this proposed rule.
H. National Environmental Policy Act
Each infrastructure project that is covered under FAST-41 requires
Federal agencies to render certain decisions. Such Federal agencies are
required to adhere to the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.) when making those decisions. This
rulemaking simply imposes fees on those project sponsors applying to
become a covered project under FAST-41; therefore, by itself, this
rulemaking would not have any effect on the quality of the environment.
I. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
This rule is not expected to be subject to the requirements of
Executive Order 13771, published at 82 FR 9339, on February 3, 2017.
List of Subjects in 40 CFR Part 1900
Administrative practice and procedure, Fees, Reporting and
recordkeeping requirements.
Dated: August 27, 2018.
Angela F. Colamaria,
Acting Executive Director, Federal Permitting Improvement Steering
Council--Office of the Executive Director (FPISC-OED).
[[Page 44856]]
0
For the reasons stated in the preamble, under the authority of 42
U.S.C. 4370m et seq., FPISC proposes to add chapter IX to title 40 of
the Code of Federal Regulations as set forth below:
CHAPTER IX--FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL
PART 1900--COORDINATION OF ENVIRONMENTAL REVIEWS AND
AUTHORIZATIONS--FEES
Subpart A--General
Sec.
1900.1 Purpose and scope.
1900.2 Definitions.
1900.3 Initiation fee.
Subpart B--[Reserved]
Authority: 42 U.S.C. 4370m et seq.
Subpart A--General
Sec. 1900.1 Purpose and scope.
The purpose of this part is to establish an initiation fee to
reimburse the Federal Permitting Improvement Steering Council-Office of
the Executive Director (FPISC-OED) for costs incurred in the
coordination of environmental reviews and authorizations under Title 41
of the Fixing America's Surface Transportation Act of 2015 (FAST-41)
(42 U.S.C. 4370m et seq.). As of [date one day after the publication of
the final rule in the Federal Register], any project sponsor submitting
a FAST-41 initiation notice must comply with all applicable
requirements of this part.
Sec. 1900.2 Definitions.
As used in this part--
Agency means the same as the term in 5 U.S.C. 551.
Business day means Monday through Friday and excludes Federal legal
holidays.
Covered project means the same as the term in 42 U.S.C. 4370m(6).
Environmental Review Improvement Fund means the fund established in
the Treasury of the United States to deposit any initiation fees
collected by FPISC-OED.
Executive Director means the same as the term in 42 U.S.C.
4370m(12).
Facilitating agency means the same as the term in 42 U.S.C.
4370m(13).
FAST-41 means Title 41 of the Fixing America's Surface
Transportation Act, codified at 42 U.S.C. 4370m through 4370m-12.
FAST-41 initiation notice (FIN) means a FAST-41 initiation notice
of a proposed covered project that a project sponsor submits to the
Federal facilitating or lead agency and FPISC-OED.
FPISC-OED means the Federal Permitting Improvement Steering
Council-Office of the Executive Director that supports the Federal
Permitting Improvement Steering Council in implementing the provisions
of FAST-41.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaskan Native village or
regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.),
that is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Initiation fee means a non-refundable payment submitted by a
project sponsors in two parts: When the sponsor submits a FAST-41
initiation notice, and upon determination that the project is a covered
project under FAST-41.
Lead agency means the same as the term in 42 U.S.C. 4370m(15).
NEPA means the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.).
Project sponsor means the same as the term in 42 U.S.C. 4370m(18).
Sec. [thinsp]1900.3 FAST--41 initiation fee.
(a) Initiation fee. A project sponsor shall submit an initiation
fee of $200,000, $5,000 of which the project sponsor shall pay upon
submission of a FIN and $195,000 of which the project sponsor shall pay
within 10 business days of being notified that a project is a covered
project.
(b) Adjustment of initiation fee. Each fiscal year, beginning in FY
2019, the FPISC-OED may reassess and adjust the amount of the
initiation fee described in paragraph (a) of this section based on
program implementation experience and the number of infrastructure
projects seeking to become ``covered projects'' under FAST-41, and to
adequately cover reasonable costs of the FPISC-OED. The FPISC-OED will
publish this amount in a Federal Register document.
(c) Exemptions. The initiation fee shall be excluded for the
following parties:
(1) Indian tribe proposing covered projects on trust property; and
(2) Other parties determined by FPISC-OED, in whole or in part, for
which an initiation fee would impose an undue financial burden or is
otherwise determined to be inappropriate. A project sponsor must submit
a petition for exemption which provides sufficient evidence to
demonstrate that the initiation fee would be economically burdensome or
inappropriate. FPISC-OED will consider the following factors in making
an exemption determination:
(i) The nature and cost of the infrastructure project;
(ii) The financial impact of the initiation fee on the project
sponsor;
(iii) The financial resources of the project sponsor; and
(iv) The type of operations of the project sponsor.
(d) On or before 30 days from the date that a project sponsor
submits a complete petition for exemption, the Executive Director shall
decide whether FPISC-OED will approve the petition for exemption based
on the factors set forth in paragraph (c)(2) of this section. Upon a
determination, the Executive Director shall notify in writing a project
sponsor of the determination, including a statement of reasons.
(e) Use of initiation fee. The collected initiation fees will be
available to FPISC-OED, without appropriation or fiscal year
limitation, solely for the purposes of administering and implementing
42 U.S.C. Chapter 44, Subchapter IV: Federal Permitting Improvement,
including the expenses of the Council.
(f) Collection. All fee amounts collected under paragraph (a) of
this section will be deposited into the Environmental Review
Improvement Fund.
Subpart B--[Reserved]
[FR Doc. 2018-19032 Filed 8-31-18; 8:45 am]
BILLING CODE 6820-BR-P